Williams v. State

Jackie S. WILLIAMS and Thomas L. Williams v.
STATE of Arkansas

CACR 95-484                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered March 27, 1996


1.   Appeal & error -- trial court's ruling on motion to suppress
     evidence reversed only if clearly erroneous. -- When reviewing
     a trial court's ruling on a motion to suppress evidence, the
     appellate court makes an independent determination based on
     the totality of the circumstances and reverses only if the
     ruling was clearly erroneous.

2.   Appeal & error -- argument raised for first time on appeal not
     addressed. -- Any asserted impropriety regarding the use of
     binoculars by police officers was not preserved for review
     because, at the suppression hearing, appellants never raised
     the issue as a ground on which to suppress the evidence; the
     appellate court will not address arguments raised for the
     first time on appeal; even though the State must prove that a
     warrantless intrusion was not in violation of the Fourth
     Amendment, appellants were required at least to inform the
     trial court of its contention that the officers' use of the
     binoculars constituted a search or intrusion.

3.   Search & seizure -- probable cause premised upon evidence
     obtained prior to officers' entry -- appellants failed to
     demonstrate resulting harm. -- Where, even if the officers'
     entry into appellants' home was without consent, this would
     not warrant suppression of any evidence because the officers
     never conducted any search or discovered any contraband until
     one of the officers returned with a search warrant; probable
     cause for the issuance of the search warrant was premised on
     evidence obtained prior to the officers' entry into the home,
     and thus the entry was wholly unrelated to information upon
     which the search was based; the appellate court found that
     appellants failed to demonstrate that any harm resulted from
     the officers' warrantless entry and that the trial court did
     not err in refusing to suppress evidence on this basis.

4.   Search & seizure -- officers acted lawfully with regard to all
     remaining aspects of search. -- From its review of the record,
     the appellate court held that the police officers acted
     lawfully with regard to all remaining aspects of the search in
     question; the court could not find unreasonable the steps
     taken in officers gaining admittance to the house through
     appellants' son, who, after they had met him at the front door
     and informed him that they had information regarding illegal
     activities at the house, admitted as much.

5.   Search & seizure -- information constituted probable cause --
     warrant properly issued and executed. -- Where a police
     officer obtained an incriminating admission from appellants'
     son, and another officer used this information, along with an
     accusation by an informant and the officers' observation of
     appellants' plants, in order to obtain a search warrant, the
     information constituted probable cause to support the warrant,
     and the warrant was properly issued and executed.

6.   Search & seizure -- failure to suppress evidence not clearly
     against preponderance of evidence. -- The appellate court
     found that the trial court's failure to suppress the contested
     evidence was not clearly against the preponderance of the
     evidence and, therefore, affirmed the judgment.


     Appeal from Carroll Circuit Court; Sidney H. McCollum, Judge;
affirmed.
     W.Q. Hall and Joanna P. Boyles, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     John B. Robbins, Judge.*ADVREPCA4*                DIVISION I









JACKIE S. WILLIAMS and THOMAS
L. WILLIAMS
                    APPELLANTS

V.


STATE OF ARKANSAS
                      APPELLEE



CACR 95-484

                                                   MARCH 27, 1996


APPEAL FROM THE CARROLL COUNTY
CIRCUIT COURT, [CR92-82-2]


HONORABLE SIDNEY H. MCCOLLUM,
CIRCUIT JUDGE


AFFIRMED




                     John B. Robbins, Judge.


     Appellants Jackie S. Williams and Thomas L. Williams entered
conditional pleas of guilty to the manufacture of marijuana,
possession of a controlled substance, and possession of drug
paraphernalia pursuant to Rule 24.3(b) of the Arkansas Rules of
Criminal Procedure.  Both Mr. Williams and Mrs. Williams received
two years probation and were fined $2,000.00.  They have filed
a single appeal, in which they assert that the trial court
erroneously refused to suppress the incriminating evidence that
the police seized from their home.  We find no error and affirm.
     The evidence shows that Officer Earl Hyatt interviewed Alan
Hudson after Mr. Hudson was arrested on July 8, 1992.  Officer
Hyatt testified that Mr. Hudson told him that he had been living
with Mr. Williams and that some marijuana plants were growing on
the second floor of the residence.  Based on this information,
Officer Hyatt and Officer Archie Rousey proceeded to the Williams'
home for observation.  The officers stopped on the highway in front
of their house and used binoculars to look through an upstairs
window, but were unable to identify anything that resembled
marijuana.
     On the following morning, Officers Hyatt and Rousey returned
to the highway in front of the Williams' property.  They again
attempted to locate contraband by looking into the upstairs window
through binoculars.  This time the officers were able to see a
plant inside the window, but could not determine whether it was
a marijuana plant.  In order to get a closer look, the officers
moved to, what Officer Hyatt described as, "a common driveway
that appeared to be shared by three residences off Highway 412,
including the Williams' residence."  However, upon further
observation from this location, they were still unable to identify
the plant.
     While on the "common driveway," Officer Hyatt noticed someone
looking at him from another window of the Williams' residence.  At
this time, he decided to approach the house and attempt to speak
with this person.  Upon arriving at the front door, Officer Hyatt
was met by the Williams' fifteen-year-old son, Patrick.  He asked
Patrick whether his parents were growing marijuana upstairs and
Patrick replied that he did not know because he was not allowed
to go there.  The officers expressed doubt about this and again
asked if Patrick was aware of any marijuana in the house.  This
time, Patrick looked down, nodded his head, and admitted that two
or three marijuana plants were growing in the upstairs area of the
house.
     Based on the above information, Officer Rousey left to obtain
a search warrant.  Another officer was called to the scene while
Officer Rousey was away, and he and Officer Hyatt watched over
Patrick during this two-hour period.  Officer Rousey testified that
he was with Patrick on the porch, and that he followed him inside
and sat beside him on the couch while Patrick watched television. 
Patrick would occasionally get up and go into the kitchen and get
something to drink.  Officer Hyatt followed and watched him on
these occasions.  Based on an affidavit prepared by Officer Rousey,
Officer Rousey obtained a search warrant, and upon returning to
the Williams' home a search was executed.  During the search, the
officers seized four marijuana plants, a pipe, and some poppies
believed to belong to the opiate family.
     For reversal, the appellants argue that the incriminating
evidence was seized pursuant to an unreasonable search and that it
should have been suppressed.  The appellants specifically contend
that it was unreasonable for the officers to look through the
upstairs window with binoculars; that the officers' warrantless
search of the house was not justified; and that the officers' entry
into the house was unlawful.  The appellants further assert that
the search warrant was based on illegally obtained information,
and thus all items seized were inadmissible as the fruits of a
poisonous tree.
     When this court reviews a trial court's ruling on a motion to
suppress evidence, we make an independent determination based on
the totality of the circumstances.  Freeman v. State, 34 Ark. App.
63, 806 S.W.2d 12 (1991).  We will reverse a trial court in this
regard only if the ruling was clearly erroneous.  Id.
     Initially, we find that any asserted impropriety regarding the
officers' use of binoculars has not been preserved for our review. 
This is because, at the suppression hearing, the appellants never
raised this issue as a ground on which to suppress the evidence. 
It is well established that we will not address arguments raised
for the first time on appeal.  Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995).  The appellants contend that this issue was
raised before the trial court, but in light of our review of the
record we cannot agree.  The appellants also assert that it was not
necessary to raise this argument in the trial court because, as our
supreme court stated in Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982), "it is elementary that the State must prove that
a warrantless intrusion...was not in violation of the Fourth
Amendment."  Even in light of the above standard we believe that,
in order to preserve its argument for review, the appellants were
required at least to inform the trial court of its contention that
the officers' use of the binoculars constituted a search or
intrusion.
     We next address the appellants' assertion that the officers
conducted an unlawful search when they entered the Williams' home
to keep Patrick under observation and ensure that no evidence was
destroyed.  We hold that, even if the officers' entry into the home
was without consent, this would not warrant suppression of any
evidence because the officers never conducted any search or
discovered any contraband until Officer Rousey returned with the
search warrant and a search was conducted pursuant to the warrant. 
Probable cause for the issuance of the search warrant was premised
on evidence obtained prior to the officers' entry into the home,
and thus the entry was wholly unrelated to information upon which
the search was based.  See Segura v. United State, 468 U.S. 796
(1984).  The appellants have failed to demonstrate that any harm
resulted from the officers' warrantless entry, and we find that the
trial court did not err in refusing to suppress evidence on this
basis.
     From our review of the record, we hold that the police
officers in the instant case acted lawfully with regard to all
remaining aspects of the search in question.  The appellants
concede in their brief that the officers had the right to enter
the common driveway in front of the house.  After doing so, the
officers noticed someone looking at them through a window, and met
this person at the front door.  Upon discovering that he was the
Williams' son, the police informed him that they had information
regarding illegal activities at the house, and Patrick admitted as
much.  We cannot find that these steps taken by the police were
unreasonable.
     Once Officer Hyatt obtained the incriminating admission from
Patrick, Officer Rousey used this information, along with the
accusation by Mr. Hudson and the officers' observation of the
plants, in order to obtain a search warrant.  The above information
constituted probable cause to support the warrant, and thus the
warrant was properly issued and executed.
     We find that the trial court's failure to suppress the
contested evidence was not clearly against the preponderance of the
evidence.  Therefore, we affirm.
     Affirmed.
     Cooper and Stroud, JJ., agree.