Williams v. State
Annotate this Case
Houston WILLIAMS and Kathlene Williams v.
STATE of Arkansas
CA CR 94-581 ___ S.W.2d ___
Court of Appeals of Arkansas
En Banc
Opinion delivered July 3, 1996
1. Motions -- review of denial of motion for directed verdict --
factors on review. -- A motion for a directed verdict is a
challenge to the sufficiency of the evidence; the appellate
court reviews the sufficiency of the evidence before
considering any alleged trial error and, in doing so, must
consider all the evidence, including any that may have been
inadmissible; when reviewing the sufficiency of the evidence,
the appellate court must view the evidence in the light most
favorable to the appellee and affirm if the verdict is
supported by substantial evidence; substantial evidence is
that which is of sufficient force and character that it will,
with reasonable certainty, compel a conclusion one way or the
other without resort to speculation or conjecture.
2. Drugs & narcotics -- proof needed for conviction for
possession of controlled substance -- when constructive
possession may be implied. -- To convict a defendant of
possession of a controlled substance, the State need not prove
that the accused had actual possession of the controlled
substance; constructive possession, which is control or the
right to control the contraband, is sufficient; constructive
possession can be implied where the contraband is found in a
place immediately and exclusively accessible to the defendant
and subject to his control.
3. Drugs & narcotics -- possession of controlled substances --
two elements of proof necessary when conviction is based on
joint occupancy of premises where contraband is found. --
Where a conviction for possession of a controlled substance is
based on joint occupancy of the premises where contraband is
found, the State must prove two elements: (1) that the accused
exercised care, control, and management over the contraband;
and (2) that the accused knew that the matter possessed was
contraband; such control and knowledge can be inferred from
the circumstances when there are additional factors linking
the accused to the contraband.
4. Drugs & narcotics -- sufficient additional evidence linked
appellant to drugs found at her home -- substantial evidence
supported appellant's conviction. -- The presence of numerous
firearms, drug paraphernalia, and the large quantity of drugs
throughout the house in various locations, coupled with
testimony by the State's rebuttal witness that she had used
methamphetamine on numerous occasions with appellant in her
home and helped her bag the drugs, was sufficient to link
appellant with the contraband; thus, there was sufficient
evidence for the jury to infer that she was in possession of
the marijuana and methamphetamine, and there was substantial
evidence to support appellant's conviction.
5. Search & seizure -- review of trial court's denial of motion
to suppress -- trial court reversed only if ruling clearly
against preponderance of evidence. -- In reviewing a trial
court's denial of a motion to suppress evidence, the appellate
court makes an independent determination based on the totality
of the circumstances and reverses the trial court's ruling
only if it is clearly against the preponderance of the
evidence.
6. Search & seizure -- searches outside judicial process are per
se unreasonable -- requirements of plain-view exception
discussed. -- Searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment, subject to a few
specifically established and well-delineated exceptions; the
observation of evidence in plain view, however, is not a
search, and therefore the resulting seizure is not the result
of an unreasonable search; the requirements of the plain-view
exception are: (1) the initial intrusion must be lawful; (2)
the discovery of the evidence must be inadvertent; and (3) the
incriminating nature of the evidence must be immediately
apparent.
7. Search & seizure -- initial intrusion into appellant's home
lawful -- objects seized were not in plain view. -- Where the
appellant consented to the officers' entry into the home, the
officers' intrusion was lawful; however, much of the
contraband seized was not in plain view but was instead behind
a bag of cookies that one of the officers moved and in a desk
drawer that the officer opened; thus, the plain-view exception
to the warrant requirement did not apply to the drugs and drug
paraphernalia described in the affidavit for the search
warrant.
8. Search & seizure -- exclusionary rule defined -- when evidence
received through an illegal source is admissible. -- The
exclusionary rule prohibits introduction into evidence of
tangible materials seized during an unlawful search and of
testimony concerning knowledge acquired during an unlawful
search; the exclusionary rule also prohibits the introduction
of derivative evidence that is acquired as an indirect result
of the unlawful search; however, evidence received through an
illegal source is admissible if it is also obtained through an
independent source.
9. Search & seizure -- independent-source doctrine -- ultimate
question to be addressed in applying. -- The ultimate question
that must be addressed is whether the search pursuant to
warrant was in fact a genuinely independent source of the
information and tangible evidence at issue; a two-step
analysis is required in determining whether the search was in
fact an independent source.
10. Search & seizure -- independent-source doctrine -- two-step
analysis for applicability. -- The proper method for
determining the validity of a search pursuant to a warrant
based on an affidavit that contains information unlawfully
obtained has two steps: the first step is to excise the
illegally obtained information from the affidavit and
determine whether the remaining information is sufficient to
establish probable cause; the second step is to examine
whether the information gained from the illegal entry affected
the officers' decision to seek the warrant or the magistrateþs
decision to grant it.
11. Search & seizure -- independent-source doctrine applied --
first step met. -- After the information obtained by the
officers in the initial, unlawful search was excised from the
affidavit, there was sufficient information left to constitute
probable cause where the officers had information from three
different confidential informants over a period of several
months indicating that one appellant was engaged in
methamphetamine trafficking; where, although the affidavit did
not specifically set forth facts that would tend to show the
reliability of the informants, the officers corroborated or
confirmed many of the tips given by informants; and where one
witness's admission that, over a long period and currently, he
had been buying methamphetamine from the home of appellant
implicated that property; under the "totality of the
circumstances" test set forth in Illinois v. Gates, 462 U.S. 213 (1983), the affidavit was sufficient to establish probable
cause even after the illegally obtained information was
excised.
12. Search & seizure -- independent-source doctrine -- the illegal
entry affected officer's decision to seek a warrant --
exclusionary rule mandated exclusion of evidence seized
pursuant to the warrant. -- Where the officer's decision to
seek the warrant was prompted by what he saw during his
initial, unlawful search, under Murray v. United States, 487 U.S. 533 (1988), the exclusionary rule mandated exclusion of
the evidence seized pursuant to the search warrant; the trial
court erred in refusing to suppress the evidence and reverse
and remand for a new trial as to both appellants.
13. Appeal & error -- appellant failed to make sufficient proffer
of excluded evidence -- issue not reached on appeal. --
The court was unable to address the argument because appellant
failed to make a sufficient proffer of the excluded evidence;
there must be a proffer of the evidence that is improperly
excluded in order to find error; the court could not address
the issue.
14. Criminal procedure -- joinder of offenses for trial -- when
proper. -- When offenses are based on the same conduct or a
series of acts connected together or constituting parts of a
single scheme or plan, they may be joined for trial; the
decision to join or sever offenses is within the discretion of
the trial court, and the appellate court will not reverse
absent an abuse of discretion.
15. Criminal procedure -- trial court did not abuse its discretion
in refusing to sever the offenses -- acts were sufficiently
similar to constitute a single scheme or plan. -- Where
appellant was found in possession of the same type of drug on
the day after the original seizure of contraband from her
home, the trial court did not abuse its discretion in refusing
to sever the offenses; these acts are sufficiently similar in
character, location, and time to constitute a continuing
course of conduct which, in effect, constituted a single
scheme or plan.
16. Search & seizure -- motion to suppress should have been
granted -- evidence found in appellant's purse was fruit of
the poisonous tree. -- Where, at the time of appellant's
arrest, the only probable cause that existed for the officers
to believe that she had committed or was committing a crime
was the information obtained from the unconstitutional search
of her home, appellant's arrest was unlawful; any evidence
obtained as a result of an unconstitutional and unlawful
arrest must be excluded at trial unless it falls within one of
the exceptions because it is considered fruit of the poisonous
tree; thus, the trial court erred in failing to suppress the
methamphetamine found in appellant's purse in the search
incident to her arrest.
Appeal from Washington Circuit Court; William Storey, Judge;
reversed and remanded.
Finch & Gartin, by: Jay T. Finch and; Robert E. Irwin, for
appellants.
Winston Bryant, Att'y Gen., by: J. Brent Standridge, Asst.
Att'y Gen., for appellee.
John F. Stroud, Jr., Judge. *ADVREP*CA11*
EN BANC
HOUSTON WILLIAMS AND KATHLENE
WILLIAMS
APPELLANTS
V.
STATE OF ARKANSAS
APPELLEE
CACR 94-581
July 3, 1996
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT [CR93-311]
HONORABLE WILLIAM STOREY,
CIRCUIT JUDGE
REVERSED AND REMANDED
John F. Stroud, Jr., Judge.
Kathlene Williams was found guilty of possession of marijuana with intent to
deliver and two counts of possession of methamphetamine with intent to deliver. She
was sentenced to a total of fifteen years in the Arkansas Department of Correction and
a fine of $10,000. She appeals her conviction, asserting that the trial court erred: 1) in
failing to grant her motion for a directed verdict; 2) in limiting the scope of cross-
examination of a witness; 3) in denying her motion to sever offenses; 4) in denying her
motion to suppress evidence found in her purse at the time of her arrest; 5) in denying
her motion to suppress evidence obtained in a search of her home; and 6) in allowing
the State to reopen its case to introduce additional evidence. Houston Williams was
found guilty of possession of marijuana with intent to deliver and possession of
methampetamine with intent to deliver and sentenced to a total of thirty years in the
Arkansas Department of Correction and a fine of $25,000. He appeals asserting only
that the trial court erred in failing to suppress evidence found in a search of his home.
We find that the trial court erred in failing to suppress the evidence found in the search
of the Williamsþ home and reverse and remand for a new trial.
On November 12, 1992, the Fayetteville Police Department received information
from a confidential informant that Houston Williams was a trafficker of controlled
substances who lived at 37 Centerwood in West Fork, Arkansas. According to the
informant, Houston Williams traveled to Arizona and California to pick up large amounts
of methamphetamine and brought them back to the Northwest Arkansas area for
distribution.
On December 31, 1992, the Fayetteville Post of Duty Drug Enforcement
Administration Office received information from Special Agent Johnny Cardinez of the
Drug Enforcement Agency in Alpine, Texas, that he had a confidential informant from the
Northwest Arkansas area in custody in Alpine, Texas. The informant said that Butch and
Kathleen Williams, who lived at 37 Centerwood in West Fork, Arkansas, would travel to
Albuquerque, New Mexico, every three weeks and pick up approximately one to two
pounds of methamphetamine and cocaine. They would return to West Fork, Arkansas,
and distribute the drugs in the Northwest Arkansas area.
On February 22, 1993, at approximately 4:10 p.m., Detective McCarty received
a phone call from Detective Scott Rogers of the 19th Judicial District Drug Task Force.
Detective Rogers told Detective McCarty that he had just received a phone call from a
confidential informant who told him that Henry Glosemeyer was leaving Rogers,
Arkansas, with a person named Butch. The CI said that Glosemeyer and Butch were
en route to 37 Centerwood in West Fork, Arkansas, where Glosemeyer was to pick up
a large amount of methamphetamine. The informant gave Detective Rogers two vehicle
descriptions, a red Ford Flareside pickup with license number TWT-932 and a gray
Mercury Capri with license number WEI-997. The informant stated that Glosemeyer
would then return to Rogers, Arkansas, around 9:00 p.m. to deliver the
methamphetamine to his customers.
Upon receiving the information, officers went to the West Fork address. On the
way there, Detective McCarty and Sgt. Tabor passed the 1991 gray Mercury Capri
bearing Arkansas vehicle license WEI-997, which was southbound into West Fork.
Later, the officers saw the car arrive at 37 Centerwood. Over a period of approximately
30 minutes, the officers saw the car leave the house on two occasions. Once it went to
a car wash in West Fork; the second time it left southbound on Highway 71.
At approximately 7:30 p.m. on February 22, 1993, the surveillance officers saw
a red Ford Flareside pickup arrive at 37 Centerwood in West Fork, Arkansas. The truck
remained at the residence until approximately 8:00 p.m. when someone drove it to a
church on McKnight Street and dropped off a passenger. The driver then returned to the
Centerwood address where the officers drove by and saw the driver place something
behind the front seat of the truck.
On February 22, 1993, at approximately 8:35 p.m., the red Ford Flareside pickup
left northbound on Highway 71 heading toward Fayetteville. Fayetteville Police
Department Officer Brian Waters was contacted and asked to watch for a red pickup
traveling north on Highway 71. Officer Waters, who was stationed on Highway 71 at the
south city limits in Fayetteville, saw the truck and visually estimated its speed at 50 miles
per hour. He then followed the truck and paced it at 48 miles per hour in a 45 mile per
hour zone. Officer Waters continued to pace the truck and verified its speed. He
stopped the truck when it went from a 45 mile per hour zone into a 40 mile per hour
zone without slowing down.
The driver, Mr. Glosemeyer, was issued a warning for speeding. Officer Waters,
noticing that Mr. Glosemeyer appeared nervous, asked him if he was transporting any
guns, drugs, stolen property, or large sums of unreported cash. Mr. Glosemeyer said
that he was not. Officer Waters asked if he would give consent to a search of the truck,
and Mr. Glosemeyer said that he would. Officer Waters then filled out a consent to
search form and explained it to Mr. Glosemeyer. He asked Mr. Glosemeyer to read the
consent to search form and, if he had no objections, to sign it. Mr. Glosemeyer then
read the consent form and signed it.
The officers searched the truck manually, but they did not find any contraband.
Then they used a drug dog to search the truck, and the dog gave an active, aggressive
alert. A second manual search was conducted, but nothing was found. The officers
decided to transport the vehicle to an indoor facility where a thorough search could be
conducted. During this search, they found approximately two ounces of a white powder
substance under the truck bed mat. Detective McCarty field tested the powder, and it
tested positive for the presence of methamphetamine, a Schedule II controlled
substance.
The officer read Glosemeyer his Miranda rights. After being Mirandized,
Glosemeyer told detective McCarty that he had received an extremely large amount of
methamphetamine from Houston Williams over the last year. He said that in the last
month he had dealt at least one pound of methamphetamine that he had gotten from
Williams. Glosemeyer stated that Williams borrowed his truck, drove to California,
picked up four pounds of methamphetamine, and returned to West Fork, Arkansas, on
February 22, 1993. He also said that, on February 22, 1993, he received two ounces
of the methamphetamine from Williams at his residence in West Fork, Arkansas.
On February 23, 1993, based on the above information, Officers Norman, Tabor,
Lovett, and Nelson arrived at 37 Centerwood at approximately 9:00 a.m. Norman and
Tabor knocked on the door and were greeted by Kathlene Williams. Norman and Tabor
identified themselves as narcotics officers and asked her if she would let them in to
speak to her and her husband, Houston Williams. Kathlene Williams invited all four
officers into the house. Norman observed an automatic pistol on top of a dresser
located in the living room and immediately took possession of it and disarmed it. At that
point, Tabor asked Kathlene Williams if her husband, Houston Williams, was home. She
said that he was home but that he was asleep. Officers asked Mrs. Williams to wake
him, and she went to the back bedroom and told her husband that the officers were
there and wanted to speak with him. Mr. Williams came into the living room with his
wife, and the officers immediately identified themselves as narcotics investigators.
Lovett and Nelson went into the kitchen with Mrs. Williams while Norman and
Tabor sat in the living room area and spoke with Houston Williams. Norman and Tabor
advised him that they were conducting a narcotics investigation which stemmed from the
arrest of Henry Glosemeyer. Before asking Mr. Williams any questions, Norman advised
him of his Miranda warnings. Mr. Williams agreed to talk with the officers. Mr. Williams
denied knowing of any narcotics trafficking. Norman and Tabor told Mr. Williams that
they believed that he knew the location of approximately four pounds of
methamphetamine he had brought in from California. Mr. Williams again said that he
was unaware of what the officers were talking about.
At approximately 10:00 a.m., Ronald Fox, a documented methamphetamine
dealer, arrived at the Williamsþ home. Tabor intercepted Fox, identified himself as a
narcotics investigator, and told him that Houston Williams was under investigation for
narcotics trafficking. Mr. Fox decided not to go inside the house, and he left the area.
At approximately 10:45 a.m., Norman asked Houston Williams if he would consent
to a search of his residence by the officers. He refused.Houston Williams told the
officers that he needed to use the restroom. He went to a restroom connected to his
bedroom, and Norman followed him to the restroom and quickly scanned the master
bedroom for any weapons. Norman scanned the adjoining bedroom, which had been
converted into an office, and saw two handguns. He waited for Houston Williams to
leave the restroom and then asked him if the handguns in the office were loaded.
Houston Williams said that they were not and stated, "Go ahead and check.þ
Norman entered the office and checked both weapons to see if they were loaded;
they were not. Norman observed a set of scales, sitting on a desk in the room, which
were partially hidden by a bag of cookies. Norman moved the bag and saw what
appeared to be a white rock sitting on the scales. Norman believed that this was a
controlled substance and considered Houston Williams to be under arrest. Norman also
saw what appeared to be a plastic bag in a partially opened drawer of the same desk
where the scales were located. He opened the drawer and observed what appeared to
be a large rock of suspected methamphetamine along with various drug paraphernalia
including a mirror with powder residue, a spoon with residue, and several other empty
plastic bags. Houston Williams told Norman that the methamphetamine was for his
personal use.
While the officers were at the residence with Houston Williams, Lowry of the Drug
Enforcement Administration contacted Assistant U.S. Attorney Steven Snyder of the
Western District of Arkansas and advised him of the investigation. Snyder told the
officers to clear the residence and obtain a search warrant for it. Snyder also authorized
the prosecution of Houston Williams, and he was placed under arrest for possession of
methamphetamine with the intent to distribute.
The officers obtained a search warrant based on the information obtained from
the confidential informants, Henry Glosemeyer, and the officersþ investigation of Williamsþ
house. They executed the warrant and seized twenty-nine pieces of evidence.
On February 24, 1993, appellant Kathlene Williams went to court to attempt to
post bail for Houston Williams. When she arrived at the courthouse, she was arrested
based on the evidence found during the search of her house the previous day, and her
purse was searched incident to her arrest. The officers found .02 ounces of
methamphetamine in her purse.
The trial court found both Houston and Kathlene Williams to be indigent and
appointed counsel from the Washington County Public Defenderþs Office. Kathlene
Williams obtained separate counsel in July 1993.
Both appellants filed a motion to suppress the evidence seized at their home
without a search warrant, and the trial court granted the motion. The trial court denied
motions to suppress the evidence seized as a result of the search pursuant to the search
warrant. It also denied Kathlene Williamsþs motion to sever the trial to permit the
defendants to be tried separately. The court originally granted her motion to sever the
count in the information charging her with possession of methamphetamine as a result
of the drugs found in her purse at the courthouse, but it later denied the motion.
At trial, a police officer testified, and the evidence seized as a result of the search
of the Williamsþs house pursuant to the search warrant was admitted. At the close of the
Stateþs case, appellants made motions for directed verdicts, contending that there was
insufficient evidence to convict them. As part of her motion for directed verdict, Kathlene
Williams called attention to the fact that the State failed to have marijuana seized from
the house introduced into evidence. The State asked to reopen its case and admit the
marijuana, and the court allowed it to reopen its case over appellantsþ objections.
Kathlene Williams called character witnesses in her behalf, and the State offered
the testimony of Terri Glosemeyer, Henry Glosemeyerþs wife, in rebuttal. She testified
that Kathlene Williams often used drugs with her when they lived together. When
Kathlene Williamsþs attorney tried to cross-examine Terri Glosemeyer, the State objected
to the relevance of any questions concerning her relationship with Henry Glosemeyer.
The court sustained the objection, in part, by limiting the scope of cross-examination to
asking whether she had been given any particular deal by the State for her testimony or
any special favors or consideration.
Appellants renewed their motions for directed verdicts at the close of their cases
and again after the rebuttal testimony. The court denied the motions. The jury convicted
both appellants of possession of marijuana with intent to deliver and possession of
methamphetamine with intent to deliver.
We first consider Kathlene Williamsþs argument that the trial court erred in failing
to grant a directed verdict in her favor on the counts charging her with possession of
marijuana and methamphetamine with intent to deliver based on the drugs seized from
her home. A motion for a directed verdict is a challenge to the sufficiency of the
evidence. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). We review the
sufficiency of the evidence before considering any alleged trial error and in doing so we
must consider all the evidence, including any which may have been inadmissible.
Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994). When reviewing the
sufficiency of the evidence, we must view the evidence in the light most favorable to the
appellee and affirm if the verdict is supported by substantial evidence. Knight v. State,
51 Ark. App. 60, 908 S.W.2d 664 (1995). Substantial evidence is that which is of
sufficient force and character that it will, with reasonable certainty, compel a conclusion
one way or the other without resort to speculation or conjecture. Id.
Kathlene Williams contends that the State failed to prove that she was in
possession of the drugs seized from her home because the only evidence connecting
her to the drugs was circumstantial evidence that was also consistent with appellantþs
lack of knowledge of the drugs. She alleges that there is nothing to link her to the drugs
found in her home. She also contends that character evidence is insufficient to convict.
In order to convict a defendant of possession of a controlled substance, the State
need not prove that the accused had actual possession of the controlled substance.
Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995). Constructive possession,
which is control or the right to control the contraband, is sufficient. Crossley v. State,
304 Ark. 378, 802 S.W.2d 459 (1991). Constructive possession can be implied where
the contraband is found in a place immediately and exclusively accessible to the
defendant and subject to his control. Mosley v. State, 40 Ark. App. 154, 844 S.W.2d 378
(1992). However, where the conviction is based on joint occupancy of the premises
where contraband is found, the State must prove two elements: (1) that the accused
exercised care, control, and management over the contraband; and (2) that the accused
knew that the matter possessed was contraband. Darrough, supra. Such control and
knowledge can be inferred from the circumstances where there are additional factors
linking the accused to the contraband. Mosley, supra.
In this case, there is sufficient additional evidence to link Kathlene Williams to
the drugs found in her home. At trial, the State introduced several firearms into evidence
which were seized from various locations around appellantþs house. In addition, the
State introduced into evidence marijuana along with rolling papers that were found in a
desk drawer in the den of the house. It introduced four bags of methamphetamine, a
bottle of Inositol powder, and a set of small plastic scales seized from the middle desk
drawer of the desk in the den. It also presented a plastic bag containing powdered
methamphetamine and a plastic bag containing a rock of methamphetamine which were
seized from a different drawer in the desk. In addition, the State introduced twelve
plastic bags of marijuana seized from the freezer part of the refrigerator in the kitchen
and a photograph showing a brown paper bag in which the marijuana was found in the
freezer. The presence of numerous firearms, drug paraphernalia, and the large quantity
of drugs throughout the house in various locations, coupled with testimony by the Stateþs
rebuttal witness that she had used methamphetamine on numerous occasions with the
appellant in her home and helped her bag the drugs, was sufficient to link her with the
contraband. Thus, there was sufficient evidence for the jury to infer that she was in
possession of the marijuana and methamphetamine, and there was substantial evidence
to support appellantþs conviction.
Both appellants argue that the trial court erred in denying their motions to
suppress the drugs, drug paraphernalia, and firearms seized from their home during the
execution of the search warrant. They claim that the search warrant was invalid under
the þfruit of the poisonous treeþ doctrine because some of the facts set forth in the
affidavit for the search warrant to establish probable cause to search their home were
discovered in a previous, unlawful search of their home.
In reviewing a trial courtþs denial of a motion to suppress evidence, we make an
independent determination based on the totality of the circumstances and reverse the
trial courtþs ruling only if it is clearly against the preponderance of the evidence. Phillips
v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996).
The trial court found that the officersþ initial intrusion into appellantsþ home, which
yielded information used in the affidavit for the search warrant, was an unlawful search
and suppressed the evidence seized in that initial search. The Stateþs position is that
the initial intrusion was not an unlawful search because the appellants consented to the
officers entering their home and the contraband found in the initial visit to appellantsþ
home was in plain view. Thus, the initial issue we must decide is whether the
information contained in the affidavit was the result of an unlawful search.
Searches conducted outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable under the Fourth Amendment--subject to a few
specifically established and well-delineated exceptions. Washington v. State, 42 Ark.
App. 188, 856 S.W.2d 631 (1993)(citing California v. Acevedo, 500 U.S. 565 (1991)).
The observation of evidence in plain view, however, is not a search and therefore the
resulting seizure is not the result of an unreasonable search. Id. The requirements of
the plain view exception are: (1) the initial intrusion must be lawful; (2) the discovery of
the evidence must be inadvertent; and (3) the incriminating nature of the evidence must
be immediately apparent. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995).
In this case, Kathlene Williams consented to the officersþ entry into the Williamsþ
home; thus, the officersþ intrusion was lawful. Although the testimony indicates that
some of the firearms seized may have been in plain view such that their discovery was
inadvertent, other contraband was not. Officer Norman testified that he moved a bag of
cookies away from a set of scales in order to see a rock-like substance on the scale.
He also said that he opened a desk drawer because he saw the top of a plastic bag
hanging out. Upon opening the drawer, he saw what appeared to be methamphetamine
and drug paraphernalia. Clearly, Officer Normanþs discovery of the methamphetamine
was not inadvertent. Thus, the plain view exception to the warrant requirement does not
apply to the drugs and drug paraphernalia described in the affidavit for the search
warrant.
When he opened the desk drawer and moved the bag away from the scales,
Officer Norman conducted a search of appellantþs home. He did so without a warrant,
and none of the exceptions to the warrant requirement of the Fourth Amendment apply.
Thus, Officer Norman conducted an unlawful search of appellantþs home. The
information gleaned in this unlawful search was included in Officer Normanþs affidavit for
the search warrant.
The exclusionary rule prohibits introduction into evidence of tangible materials
seized during an unlawful search and of testimony concerning knowledge acquired
during an unlawful search. Murray v. United States, 487 U.S. 533 (1988). Beyond that,
the exclusionary rule also prohibits the introduction of derivative evidence that is
acquired as an indirect result of the unlawful search. Id. However, evidence received
through an illegal source is admissible if it is also obtained through an independent
source. Id.
The State argues that application of the independent-source doctrine renders the
search of the Williamsþ home valid and the evidence seized admissible. The United
States Supreme Court addressed a similar situation in Murray, supra,and held that the
ultimate question that must be addressed is whether the search pursuant to warrant was
in fact a genuinely independent source of the information and tangible evidence at issue.
Murray has been interpreted to require a two-step analysis in determining whether the
search was in fact an independent source. See, U.S. v. Restrepo, 966 F.2d 964 (5th Cir.
992) and State v. Gulbrandson, 906 P.2d 579 (Ariz. 1995).
We believe that Gulbrandson, supra, sets forth the proper method under Murray
for determining the validity of a search pursuant to a warrant based on an affidavit that
contains information unlawfully obtained. The first step is to excise the illegally obtained
information from the affidavit and determine whether the remaining information is
sufficient to establish probable cause. The second step is to examine whether the
information gained from the illegal entry affected the officersþ decision to seek the
warrant or the magistrateþs decision to grant it.
We find that, when the information obtained by the officers in the initial, unlawful
search is excised from the affidavit in this case, there is sufficient information left to
constitute probable cause. The officers had information from three different confidential
informants over a period of several months indicating that Houston Williams was
engaged in methamphetamine trafficking. In addition, Glosemeyer told police that
Williams was trafficking in methamphetamine out of his house. Although the affidavit did
not specifically set forth facts that would tend to show the reliability of the informants, the
officers corroborated or confirmed many of the tips given by informants. They confirmed
the description of the vehicles en route to Williamsþ home, the identity of the driver of
one of the vehicles, and the presence of methamphetamine in one of the vehicles. In
addition, Glosemeyerþs admission that over a long period and currently he had been
buying methamphetamine from the home of Houston Williams implicated that property.
Under the þtotality of the circumstancesþ test set forth in Illinois v. Gates, 462 U.S. 213
(1983), we believe that Normanþs affidavit is sufficient to establish probable cause even
after the illegally obtained information is excised. Thus, under the first part of the Murray
analysis, the warrant would be valid.
Under the second part of the Murray analysis, we next examine the question of
whether the illegal entry affected the officerþs decision to seek the warrant. Officer
Norman testified that the reason the officers did not get a search warrant before they
went to the Williamsþ house the first time was because the Prosecuting Attorney of
Washington County told them that they did not have enough information to establish
probable cause. He said that they gained sufficient additional information during the
search to get the search warrant. In light of this testimony by the officer who eventually
sought the warrant, we find that his decision to seek the warrant was prompted by what
he saw during his initial, unlawful search. Thus, under Murray v. United States, 487 U.S. 533 (1988), we find that the exclusionary rule mandates exclusion of the evidence seized
pursuant to the search warrant. Accordingly, we find that the trial court erred in refusing
to suppress the evidence and reverse and remand for a new trial as to both appellants.
Kathlene Williamsþ argument that the trial court erred in allowing the State to
reopen its case to introduce a pound of marijuana into evidence is not likely to recur on
retrial; thus, we do not address it. She has, however, raised other allegations of error
that are likely to recur on retrial, which we address in order to prevent piecemeal
appeals.
Kathlene Williams argues that the trial court erred in limiting the scope of her
cross-examination of Terri Glosemeyer. Although this issue may arise on retrial, we are
unable to address this argument because she failed to make a sufficient proffer of the
excluded evidence. There is no information in the abstract from which this court can
determine the substance of the offer. Appellantþs counsel merely stated that he intended
to ask questions about Mrs. Glosemeyerþs relationship with Mr. Glosemeyer to show that
she was biased. There was no proffer of the substance of these questions. There must
be a proffer of the evidence that is improperly excluded for us to find error. Ark. R. Evid.
103(a)(2), Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). Thus, we cannot
address this issue. See Hodge v. State, 27 Ark. App. 93, 766 S.W.2d 619 (1989).
Kathlene Williams also argues that the trial court erred in refusing to sever the
offense of possession on the day she was arrested from the possession charge
stemming from the search of her house the day before because the second offense was
not a part of a single scheme or plan, and evidence of one offense would not be allowed
in a separate trial to prove the other offense. She contends that the charges involving
the drugs found at her house were independent of the subsequent charge of possession
of methamphetamine for the drugs found in her purse at the courthouse. The trial court
initially granted her motion to sever, but later denied it.
When offenses are based on the same conduct or a series of acts connected
together or constituting parts of a single scheme or plan, they may be joined for trial.
McArdell v. State, 38 Ark. App. 261, 833 S.W.2d 786 (1992). The decision to join or
sever offenses is within the discretion of the trial court, and we will not reverse absent
an abuse of discretion. Id. The State argues that the offenses of possession of
methamphetamine and marijuana with intent to deliver occurring on February 23, 1993,
and the offense of possession of methamphetamine one day later on February 24, 1993,
were part of a single scheme or plan because they involved appellant possessing the
same type of controlled substance close in time in the same general area. Appellant
argues that this is insufficient and cites Teas v. State, 266 Ark. 572, 587 S.W.2d 28
(1979), for the proposition that the sale of drugs on two different occasions by a
defendant to an informer was insufficient to constitute a single scheme or plan.
However, the facts of this case are clearly distinguishable from those present in Teas.
In Teas, supra, a confidential informant bought marijuana from the defendant on
December 5, 1977, and morphine from the defendant on December 14, 1977. In this
case, Kathlene Williams was found in possession of the same type of drug on the day
after the original seizure of contraband from her home. Under these circumstances, we
cannot say that the trial court abused its discretion in refusing to sever the offenses.
These acts are sufficiently similar in character, location, and time to constitute a
continuing course of conduct which, in effect, constituted a single scheme or plan.
Finally, Kathlene Williams contends that the trial court erred in failing to grant her
motion to suppress the evidence found in her purse which was searched incident to her
arrest. She claims that her arrest was invalid because the probable cause for her arrest
was based on evidence obtained when the police executed the invalid search warrant
on her home. We agree.
At the time of Kathleneþs arrest, the only probable cause that existed for the
officers to believe that she had committed or was committing a crime was the information
obtained from the unconstitutional search of her home. Thus, her arrest was unlawful.
Any evidence obtained as a result of an unconstitutional and unlawful arrest must be
excluded at trial unless it falls within one of the exceptions because it is considered fruit
of the poisonous tree. Brown v. Illinios, 422 U.S. 590 (1975); Wong Sun v. United
States, 371 U.S. 471 (1963). Thus, the trial court erred in failing to suppress the
methamphetamine found in Kathleneþs purse in the search incident to her arrest.
Reversed and remanded.
Jennings, C.J., Mayfield, Neal, and Griffen, JJ., agree.
Robbins, J., concurs in part, dissents in part.
*ADVREP*CA11-A* EN BANC
HOUSTON WILLIAMS AND KATHLENE
WILLIAMS
APPELLANTS
V.
STATE OF ARKANSAS
APPELLEE
CACR 94-581
JULY 3, 1996
APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
[CR93-311]
HONORABLE WILLIAM A. STOREY,
CIRCUIT JUDGE
CONCURRING IN PART; DISSENTING
IN PART
John B. Robbins, Judge.
I concur that this case should be reversed and remanded. However, I would
reverse and remand to allow the trial court to make findings of fact in regard to the
second step under Murray v. United States, 487 U.S. 533 (1988).
I agree with the majority's rationale concerning the first step of the Murray
analysis. The officers had sufficient independent information from other sources, i.e.,
sources other than the illegally obtained information, that established probable cause for
the issuance of the warrant. Those facts are accurately reflected in the majority opinion.
However, I believe that based upon the persuasive authority of United States v.
Restrepo, 966 F.2d 964 (5th Cir. 1992), cited in the majority opinion, we should reverse
and remand.
The second part of the Murray analysis is whether or not the illegal entry, and any
evidence or information obtained as a result of the illegal entry, affected the officers'
decision to seek the warrant. As noted by the majority, the officers did not get a search
warrant prior to their first entry into the appellants' home. Although the officers sought
assistance from the Washington County prosecutor in obtaining a warrant, he told them
that, in his opinion, they did not have enough information to establish probable cause for
one. The officers presented the prosecutor with the same information that the majority
opinion states was sufficient to establish probable cause.
I believe that the majority opinion goes too far in applying the second part of the
Murray analysis by effectively making our appellate court a fact-finding court. The
majority opinion states that "we find that [the officer's] decision to seek the warrant was
prompted by what he saw during his initial, unlawful search." In both Murray and
Restrepo the cases were remanded for the trial courts to consider whether or not the
results of the illegal searches prompted or motivated the officers' decision to seek the
warrant. In Restrepo the court stated that the officers' motivation is a question of fact
for the trial court to decide.
In the present case the trial court did not consider whether the results of the illegal
first search of appellants' home prompted or motivated the officers' decision to seek the
warrant. Such a determination is subjective and must be based on factual matters
including statements of the officers or other evidence directly probative of motivation.
I believe that the majority has done exactly what the Restrepo court warned against by
scrutinizing the record for evidence concerning motivation. This is a finding of fact that
was not made by the trial court and it is not within our province to make such findings.
As noted above, it is clear that the officers were motivated to obtain a warrant prior to
the illegal search and only failed to pursue issuance of a warrant because of a
prosecutor's opinion, which in hindsight was incorrect. Consequently, some motivation
to obtain a warrant existed both before and after the illegal search.
I would reverse and remand for the trial court to resolve this issue by making such
findings of fact as are necessary to determine the officers' primary motivation for seeking
the warrant in question.
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