Donald Eugene McGee v. State of Arkansas

Annotate this Case
ar01-740

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

DONALD EUGENE McGEE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-740

March 6, 2002

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT

[CR 1999-478]

HONORABLE KAREN R. BAKER,

CIRCUIT JUDGE

AFFIRMED

Appellant, Donald McGee, pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, entered a conditional plea of guilty to eleven drug-related offenses and was sentenced to the Arkansas Department of Correction for a period of fourteen years. McGee's sole point on appeal is that the trial court erred in denying his motion to suppress. We affirm.

At the hearing on the motion to suppress, Deputy U.S. Marshal Steve Gattis testified that he was searching for Lee Sherman Beene, a federal fugitive, and that he had obtained information that Beene had been seen with a man named Mike McManis. He learned that McManis drove to the house at the end of Audubon Road on an almost daily basis; upon notifying the Conway Drug Task Force of this information, he was told that it sounded like appellant's house. On July 7, 1999, Gattis, Vilonia Police Chief Billy Baker, and Conway

Drug Task Force Officers Travis Thorn, Tommy Ballentine, and William Tapley went to appellant's house. Gattis was wearing a raid jacket, Baker was in uniform, and the task force officers were in plain clothes. Gattis and Baker were the first to arrive at the house, and they found appellant and a woman Gattis believed to be appellant's wife outside the house by a bonfire. Gattis testified that he and Baker identified themselves and told appellant that they were looking for Beene; appellant told them that he did not know Beene and that he was not there. Gattis stated that he then requested permission to "look around," and appellant granted him permission. Gattis said that when he made this request, he did not have his weapon drawn and he did not make any threatening statements to appellant. He testified that appellant, who was wearing socks but no shoes, said that he would like to retrieve his shoes, so Gattis and appellant went inside the house. While they were inside, Baker came in and asked if it was okay for him to "look around the property," and Gattis told him that appellant had granted permission. Appellant said nothing. Appellant put on his shoes and went back outside with Gattis, at which time Investigator Thorn told appellant that some evidence had been found. A methamphetamine lab was found in a shed at the rear of the house.

On cross-examination, Gattis stated that he had not previously dealt with the informant who had given him the information about Beene, but that he believed the informant was reliable because he identified Beene from a wanted poster. Gattis admitted that he had done no surveillance to see if Beene was going to appellant's house. He said that the Conway Drug Task Force suspected that appellant was a methamphetamine cook, but he did not believe that there was enough information to get a search warrant for appellant's property. Gattis admitted that he had asked the Conway Drug Task Force to accompany himto residences at least seven or eight times, but he denied that he went to appellant's property to conduct a drug raid and search. He said that he did not go there looking for a drug lab, he was looking for Beene. Gattis said that he continued to look for Beene on the surrounding property after appellant was arrested, but he admitted that he did not search appellant's house for Beene other than to cursorily look around the living room and kitchen areas.

Vilonia Police Chief Billy Baker testified that he accompanied Gattis to appellant's house on July 7, 1999, to look for Beene. Baker recalled that when Gattis knocked on the door, appellant came out of a building in the backyard of the residence. When asked about Beene, appellant denied that he was staying there. Baker said that when Gattis asked appellant if he minded if they "looked around," appellant said, "No, go ahead, help yourself." Baker said that at that point they began searching for Beene, and Baker even went inside the house and confirmed that permission had been given to search the outside area of the house. Baker said that he specifically asked if they had consent to search, that appellant did not say anything, and that Gattis said that appellant had given consent to search. Baker then went back outside and proceeded to the storage building where an air conditioner was running, which he described as a "wonderful place" for a fugitive to hide. He said that Investigator Thorn opened the door and found the methamphetamine lab.

Investigator Thorn testified that when he arrived at appellant's residence, Gattis had already made contact with appellant and was talking to him. Thorn asked Gattis if they had permission to "look around," and in appellant's presence Gattis told him that appellant hadgiven his permission. Thorn said that after he was told appellant had consented, he went to the storage building that was located directly behind the residence and opened the door. He said that a window-unit air conditioner in the building was running at the time, and that the building was large enough for a person to be inside of it. Thorn said that he had been involved in four or five searches with Gattis for federal fugitives when Gattis had contacted the drug task force and requested assistance.

On appeal, appellant contends that the trial court erred in denying his motion to suppress the evidence found at his residence because "the actions of the law enforcement officers were unreasonable in the way they sought permission to search and how the search of his curtilage was conducted." When reviewing the trial court's denial of a motion to suppress, this 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). Although a warrantless entry into a private home is presumptively unreasonable, such a presumption may be overcome if the law-enforcement officer obtained consent to conduct a warrantless search. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). See also Ark. R. Crim. P. 11.1. Consent to a warrantless search of one's home must be given freely and voluntarily, and the State has the burden to prove by clear and positive testimony that consent was freely and voluntarily given. Burdyshaw v. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000).

In support of his argument, appellant cites Holmes v. State, 75 Ark. App. 46, 54 S.W.3d 121 (2001). This case was accepted for review and decided by our supreme court on February 7, 2002. Holmes v. State, ___Ark.___, ___S.W.3d___ (2002). The issue for which that case is cited is distinguishable from the present case. The Holmes case dealt with the issue of whether nonverbal conduct was sufficient consent to enter the appellant's house, and our supreme court held that under the totality of the circumstances, such conduct was insufficient. In the case at bar, the testimony indicates that appellant gave explicit verbal consent the first time Gattis asked for permission to "look around," and such consent was never revoked. On February 28, 2002, our supreme court affirmed the trial court's denial of a motion to suppress evidence seized at a home as a result of an anonymous call and a subsequent "knock and talk" encounter in which the appellant gave both verbal and written consent to search his property. Scott v. State, ___Ark.___, ___S.W.3d___ (2002).

Appellant also cites Judge Griffen's concurrence in Hadl v. State, 74 Ark. App. 113, 47 S.W.3d 897 (2001), and argues that courts should require that individuals be informed of the right to refuse or revoke their consent. However, this point of Judge Griffen's concurrence is not the law, as acknowledged in the concurrence. That exact argument was rejected by the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 231-32 (1973), in the discussion of determining the "voluntariness" of consent to search, in which the Court stated:

One alternative that would go far toward proving that the subject of a search did know he had a right to refuse consent would be to advise him of that right before eliciting his consent. That, however, is a suggestion that has been almost universallyrepudiated by both federal and state courts, and, we think, rightly so. For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. . . . The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime. These situations are a far cry from the structured atmosphere of a trial where, assisted by counsel if he chooses, a defendant is informed of his trial rights. And, while surely a closer question, these situations are still immeasurably, far removed from "custodial interrogation . . . ."

Appellant also argues that Gattis's request to "look around" could have been construed as a limited request that did not include outbuildings and that it was speculation to believe that he consented to a search of his outbuildings. In support of this argument, he cites Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999), and Rule 11.3 of the Arkansas Rules of Criminal Procedure for the proposition that a search based upon consent may not exceed the limits of the consent given.

Nothing in the testimony indicates that appellant ever limited the scope of the search in any way, either when he initially gave consent to Gattis or when Baker came into the house to verify that consent had been given to look around. In fact, Baker testified that when Gattis asked if they could "look around," appellant said, "go ahead, help yourself." Although "look around" does not specifically delineate the areas to be searched, with no limitations from appellant, it is reasonable to believe that consent had been given to search anywhere a fugitive might be hiding, including a storage shed where an air conditioner was running.

Appellant's last argument is that the officers tricked him into going into the house to put on his shoes and rendered him unable to limit the search. However, there is simply nothing in the testimony to support this assertion.

Although the term "look around" is not specific, appellant consented to the search of his property and in no way limited the scope of the search. Based upon the totality of the circumstances, 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 Vaught, JJ, agree.

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