Welch v. State

219 S.W.3d 156, 364 Ark. 324, 2005 Ark. LEXIS 761
Supreme Court of Arkansas·Decided December 8, 2005·No. CR 05-266·Published·Cited by 16 cases

Opinion

Jim Hannah, Chief Justice.

Appellant Everett Welch entered a negotiated guilty plea to one count of possession of methamphetamine with intent to deliver and was sentenced to twelve years’ imprisonment by the Howard County Circuit Court. In accordance with Ark. R. Crim. P. 24.3(b), Welch’s plea was conditional; therefore, he reserved the right to appeal from the circuit court’s denial of his motion to suppress evidence. For reversal, Welch argues that the circuit court erred (1) in determining that he consented to a search of his vehicle, and (2) in fading to suppress evidence stemming from the search of his vehicle where no probable cause or reasonable suspicion existed for the search. We find no error and, accordingly, we affirm. This case is an appeal involving the interpretation of the Arkansas Constitution; our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l).

Facts

The facts in this case are taken from the affidavit for Welch’s arrest, as well as testimony given at the suppression hearing. On March 6, 2004, Deputy Brian Cogburn of the Howard County Sheriffs Department made a traffic stop of a vehicle that he had observed speeding on Highway 70, west of Dierks. Radar indicated that the vehicle, driven by Welch, was traveling at seventy-one miles per hour in a fifty-five mile-per-hour zone. Shortly thereafter, Cogburn was joined at the traffic stop by Dierks police officers Jason Icenhower and Gary Simmons. Cogburn informed Welch of the reason for the stop. He then asked Welch if he could take a look inside the vehicle, and Welch agreed.

Cogburn looked inside the vehicle and noticed that a dashboard panel was loose. According to Cogburn, the panel “had . . . been popped out of the socket where it fits.” Cogburn shined his flashlight behind the loose panel and saw a white plastic bottle. He retrieved the bottle, opened it, and discovered six bags of what he thought to be methamphetamine and one bag of what he thought to be heroin.

Welch was charged with one count of possession of methamphetamine with intent to deliver. He filed a motion to suppress, arguing that the search of his vehicle was not a valid consensual search, in that the police officers obtaining the alleged consent did not do so in writing and did not advise him that he had a right to refuse consent to the search. He also argued that the search of the vehicle exceeded the scope of consent given. Finally, Welch argued that the evidence recovered from the search should be suppressed because the search was not conducted pursuant to the issuance of a search warrant, and that probable cause or reasonable suspicion did not exist for such a search, as required by the United States Constitution, the Arkansas Constitution, and the Arkansas Rules of Criminal Procedure. The circuit court denied Welch’s motion, and he now brings this appeal.

In reviewing the circuit court’s denial of a motion to suppress, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts 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. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004). We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Mann v. State, 357 Ark. 159, 161 S.W.3d 826 (2004).

We begin by addressing Welch’s arguments concerning consent to search. An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search. Ark. R. Crim. P. 11.1(a). The State has the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion. Ark. R. Crim. P. 11.1(b). The United States Supreme Court has held that the test for a valid consent to search is that the consent be voluntary, and “[v]oluntariness is a question of fact to be determined from all the circumstances.” Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 248-249 (1973)).

Welch first contends that the alleged consent to search was not valid because the officers never mentioned the word “search” or the words “consent to search” when asking for permission to look inside the vehicle. He argues that because the officers did not specifically ask for consent to search, the State cannot meet its burden of proving by clear and positive evidence that the consent was voluntary. At the suppression hearing, Cogburn testified that prior to conducting the search, he asked Welch if he could “look” inside the vehicle. On cross-examination, the following colloquy took place:

Defense Counsel: You never asked him if you could search the vehicle, did you?
Cogburn: I don’t —
The Court: What was the question?
Defense Counsel: I asked him if he ever asked Mr. Welch if he could search his vehicle.
Cogburn: I can tell you exactly what I asked.
Defense Counsel: Isn’t that what you just said, you asked if you could look —
Cogburn: The same exact words.
Defense Counsel: Okay. So you never asked him for permission to search his vehicle?
Cogburn: I asked him if he had any alcohol, firearms or drugs inside his vehicle. He said no. And I said, “Do you mind if I look? That was my exact words.
Defense Counsel: Okay. And my question is to you: Did you ever ask him for permission to search the vehicle?
Cogburn: I consider that asking for permission, yes, sir.
* * *

As noted above, Cogburn testified that he requested that he be allowed to look inside the vehicle. Welch’s testimony at the hearing reveals that he consented to allow Cogburn to look inside the vehicle. After obtaining consent, Cogburn looked inside the vehicle and found the plastic bottle. We find no merit in Welch’s assertion that his consent to search was not voluntary because he agreed only to allow Cogburn to look inside the vehicle.

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Welch v. State, 219 S.W.3d 156, 364 Ark. 324, 2005 Ark. LEXIS 761 (Ark. 2005).

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