Clayton Greer v. State of Arkansas

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ar00-871

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION III

CLAYTON GREER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-871

May 9, 2001

APPEAL FROM THE CRAIGHEAD

COUNTY CIRCUIT COURT

[CR-99-730]

HONORABLE JOHN NELSON

FOGLEMAN,CIRCUIT JUDGE

AFFIRMED

Clayton Greer was convicted by a Craighead County jury of the offenses of possession of a controlled substance (methamphetamine) with intent to deliver, possession of a controlled substance (marijuana), and possession of drug paraphernalia with intent to use. His sole point on appeal is that the trial court erred in denying his motion to suppress evidence found during a search of his residence. We affirm the convictions.

At the hearing on the motion to suppress, testimony revealed that on August 25, 1999, six officers from the Jonesboro Police Department and the Craighead County Sheriff's Department went to appellant's residence on the basis of a tip given by a parolee to his parole officer that appellant had approximately three pounds of methamphetamine there. While the other officers waited away from the house, Jonesboro police officers Jason French

and Rick Harmon approached the house, and Officer French knocked on the door. Appellant told Officer French to come in, and Officer French stepped inside the enclosed workshop/porch area where appellant was located while Officer Harmon waited outside. Officer French asked appellant if he could speak to him outside, and appellant agreed.

After going outside, Officer French explained to appellant that information had been received concerning possible drug activity at his residence, and French requested permission to search appellant's property, to which appellant agreed. At that point, Officer Harmon asked appellant, "What about your residence? Can we search your residence also?" to which appellant also answered affirmatively. Although Officer French had a consent-to-search form in his car, he did not have appellant sign such a form, and the verbal consent to search was not tape recorded. Upon a search of appellant's residence, marijuana, methamphetamine, drug paraphernalia, and a large amount of money were found.

Officer French testified that had appellant refused permission to search his residence, the officers would have left the premises because he did not believe that there was sufficient information to obtain a warrant. He denied that appellant was told to either let the officers search the premises or they would obtain a search warrant and "tear the house apart." Officer Harmon corroborated Officer French's testimony. Former deputy sheriff Bobby Johnson also testified that appellant gave the officers permission to search the residence. Johnson further stated that after appellant gave permission to search the residence, he denied having any drugs. Johnson said that he told appellant that it would be easier if he just gave the officers the drugs because if not, they would turn the house "upside down" looking forthem since he had given consent to search; at that time, appellant gave Johnson some of the drugs and paraphernalia found in the house. Johnson denied telling appellant that he had better consent to a search or they would get a warrant.

Appellant testified that the officers came to his house on August 25, 1999, and asked for permission to search his property. However, he claimed that before he answered, Bobby Johnson said, "If he don't let us have consent, we'll call the judge and we'll get consent." Appellant claimed that he felt like he had no choice but to allow the officers to search, based on the comments made by Johnson, and he stated that this was a factor in his decision to allow the officers to search his home. On cross-examination, appellant admitted that he had a prior criminal record, and he stated that his house had been searched one time prior to the present search.

On rebuttal, Officers French, Harmon, and Johnson all denied that Johnson said anything to appellant to the effect that he had better consent or the officers would go to the judge and get a warrant.

When reviewing the trial court's denial of a motion to suppress, the appellate court makes an independent determination based on the totality of the circumstances and reverses only if the trial court's ruling was clearly against the preponderance of the evidence. Embry v. State, 70 Ark. App. 122, 15 S.W.3d 367 (2000). The commentary to Rule 11.1 of the Arkansas Rules of Criminal Procedure provides that officers seeking consent to search from suspects do not have to advise the suspects that they may refuse to consent. See Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). However, the State has the burden ofproving by clear and positive testimony that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion. Id.

In denying appellant's motion to suppress, the trial judge stated that the only dispute in the testimony was the manner in which consent was obtained, and after carefully listening to the testimony of the officers, especially Officers French and Harmon, he was convinced that the consent to search was freely given. In his argument, appellant contends that his version of the facts is more credible. However, witness credibility is the determining factor in this case, and we defer to the trier of fact in that assessment, as the person in the best position to determine such credibility. See Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000); Hayes v. State, 312 Ark. 349, 849 S.W.2d 501 (1993). Appellant contends that his consent to search the house was coerced; however, the testimony of all of the officers refuted that contention. During the hearing on the motion to suppress, the trial judge chose to believe the officers' testimony. We cannot say that the trial judge's denial of appellant's motion to suppress was clearly against the preponderance of the evidence.

Affirmed.

Pittman and Roaf, JJ., agree.

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