Stephen Michael Sowell v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION IV

STEPHEN MICHAEL SOWELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-872

MAY 15, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SIXTH DIVISION, [NO. CR 99-4519]

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

REVERSED AND REMANDED

This is a case involving the warrantless entry into the appellant's home and his eventual arrest. The Pulaski County Circuit Court convicted the appellant, Stephen Michael Sowell, of maintaining a drug premises, manufacturing methamphetamine, and possession of drug paraphernalia with the intent to manufacture methamphetamine. The trial court sentenced him to a total of thirty years in the Arkansas Department of Correction. On appeal, appellant challenges the sufficiency of the evidence as to his conviction for manufacturing methamphetamine and also argues that the trial court erred in denying his motion to suppress. We reverse and remand.

Facts

On September 20, 1999, the Little Rock Police Department responded to a call reporting the discovery of a drug house located in a trailer park on McDonald Circle. The

manager of the trailer park had discovered suspicious items in a small trailer after a tenant vacated it. The landlord informed Detective Siegler that Hal Jones had lived in it. When the police arrived at the trailer, they found that many of the drug-related items had been removed from the small trailer and placed outside of it. While the police were photographing the drug-related items, a woman, Ms. Brock, arrived on the scene and suggested that the officers look for Hal Jones and appellant. Ms. Brock informed the police that these men were nearby at 8411 Herrick Lane, where she believed they were cooking methamphetamine. Detectives Flannery and Siegler drove to Herrick Lane in an unmarked pickup truck and witnessed three white males exit a truck. The detectives proceeded down the block and turned around. They drove back to the residence and stopped. At that time, a man, whom police later identified as appellant, ran inside the residence through the front door. Detective Flannery chased appellant in the front door, and followed appellant as he ran out the back door. The detective pursued appellant through the side door of a detached garage. Detective Flannery thereafter apprehended appellant and observed what he believed was a methamphetamine laboratory. The detective stated that the garage had a strong chemical odor.

Detective Flannery escorted appellant through his home, out the front door, and into the front yard. Not until this time did the police learn appellant's identity. Detective Flannery told appellant that they were looking for Hal Jones, that the police had information that methamphetamine was being manufactured at this residence, and that the police wanted appellant's consent to search the rest of the residence and garage. Detective Flannery told appellant to think about it and went to obtain a consent form from the police truck. Meanwhile, Detective Siegler orally advised appellant of his Miranda rights. Detective Siegler testified that appellant was under arrest when he was advised of his rights. At this time, appellant repeatedly stated that he was going to jail. Detective Flannery testified that he did not threaten appellant and that he told appellant that he did not have to sign the consent form. Appellant signed the form.

Sufficiency of the Evidence

Appellant maintains that the trial court erred in denying his directed-verdict motion on the manufacturing-of-methamphetamine charge. A directed-verdict motion is a challenge to the sufficiency of the evidence. We consider challenges to the sufficiency of the evidence before we address other allegations of trial error. Hunter v. State, 330 Ark. 198, 952 S.W.2d 145 (1997). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Wilson v. State, 320 Ark. 707, 898 S.W.2d 469 (1995). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion beyond suspicion and conjecture. Id. On appeal, we review the evidence in the light most favorable to the State, considering only that evidence that tends to support the verdict. Id.

In addition to the materials used to manufacture methamphetamine found at the McDonald Circle trailer, the police found similar materials at the Herrick Lane location. Detective Ken Blankenship testified that there was a very strong chemical odor coming from the garage that could be smelled outside. He stated that this was because there was an "active cook going on in there at the time." In sum, the police discovered numerousmaterials used to manufacture methamphetamine and actually found an active cook when they searched appellant's premises.

Appellant attempts to support his sufficiency-of-the-evidence argument by noting the fact that the police did not find any red phosphorous at Herrick Lane, and that the State's chemist testified that red phosphorous was needed to manufacture methamphetamine. Upon review of the record, we find that the chemist testified as follows: "You can make [methamphetamine without red phosphorous], but for this method to be quick and simple, red phosphorous is essential. However, you can make methamphetamine without it." The chemist's testimony does not support appellant's argument. Based upon the foregoing, we find sufficient evidence to support appellant's conviction for manufacturing methamphetamine.

Motion to Suppress

Appellant contends that his motion to suppress should have been granted because his consent to search was involuntary and the result of an illegal entry into his house. We agree. On review of a trial court's denial of a motion to suppress, this court makes an independent examination based on the totality of the circumstances, and will reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). Fourth Amendment

A warrantless entry into a private home is presumptively unreasonable. Welsh v. Wisconsin, 466 U.S. 740 (1984); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). Theburden is on the State to prove that the warrantless activity was reasonable. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). On appeal, this Court will make an independent determination based on the totality of the circumstances to ascertain whether the State has met its burden. Norris, supra.

The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Payton v. New York, 445 U.S. 573 (1980). The Fourth Amendment protects the individual's privacy in a variety of settings. Id.

In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home - a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their . . . houses . . . shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton, 455 U.S. at 589-90 (citations omitted). With few exceptions, the question of whether a warrantless search of a home is reasonable and hence constitutional must be answered, "no." Kyllo v. United States, 533 U.S. 27 (2001). Here, the officers acted on the information of a citizen who believed that appellant and Hal Jones were cooking methamphetamine at Herrick Lane. Without a warrant, a narcotics officer chased an unidentified man into his own home based on a private citizen's tip that appellant was involved in an active cook on the premises.

Probable Cause

We must determine if the State met its burden in proving that (1) probable cause and (2) exigent circumstances existed to justify the warrantless activity of the police. See Payton, supra. "Probable cause" means more than bare suspicion. Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999). It exists where the facts and circumstances within the knowledge of the police officers, and of which they collectively have reasonably trustworthy information, are sufficient in themselves to warrant men of reasonable caution in the belief that an offense has been or is being committed. Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987).

In regard to probable cause, the police acted on a tip when they drove to Herrick Lane. Upon their arrival, the police observed a white male run into the residence. We note from the record that the police articulated no reason to believe that this man was appellant or Hal Jones. The State provided no evidence that the police attempted to ascertain the man's identity before making a warrantless entry into the home. The testimony does not reflect that the police questioned anyone at the scene concerning the man's identity before pursuing him. Nor does the testimony reveal that the officers first checked the license plate of the truck parked in the driveway at 8411 Herrick Lane. The officer based his intrusion solely upon a tip from a citizen. At trial, the State introduced no indicia of reliability for the tip the police received.

The State did not present evidence that the informant was known to the police officers personally or that she had provided them with reliable information in the past. Furthermore,the tip was not corroborated by anything when the police first arrived on Herrick Lane. Granted, Ms. Brock was more than an anonymous informant, which adds to her credibility. It is undisputed that Ms. Brock approached the police on McDonald Circle and provided the police with her name. However, the State never established how Brock obtained her information, and the record is not clear that she witnessed appellant and Hal Jones cooking methamphetamine at Herrick Lane or that she had any first-hand knowledge of the situation. In sum, the police merely acted upon a tip from a citizen without any indicia of reliability. The only other fact police acted upon was the flight of an unknown man into the residence at Herrick Lane. We hold that the facts in this case, when viewed with the totality of the circumstances, do not constitute probable cause to justify warrantless entry into appellant's home.

Exigent Circumstances

The police not only lacked probable cause in this situation but also lacked exigent circumstances to justify their warrantless activity. Exigent circumstances are those requiring immediate aid or action. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). While there is no definite list of what constitutes exigent circumstances, several established examples include the risk of removal or destruction of evidence, danger to the lives of police officers or others, and the hot pursuit of a suspect. Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). None of these situations existed in this case. The State failed to establish that the police were justifiably concerned about the destruction of evidence. The police were given no indication that the man running into the residence would destroy the contraband. In fact, at that time appellant ran into his home, the police did not know that any contraband was on the premises.

Exigent circumstances may also exist when a suspect is fleeing or likely to flee. See Coolidge v. New Hampshire, 403 U.S. 443 (1971). However, the State cannot successfully claim that they were pursuing a suspect. When Detective Flannery chased appellant into his home, the police had no knowledge of appellant's identity. Therefore, the detective was pursuing an unidentified person rather than a suspect.

For purposes of a warrantless home arrest, an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Welsh, supra. In Norris, supra, our state supreme court refused to justify the warrantless home arrest of a defendant for driving while intoxicated by the need to preserve evidence of the offender's blood-alcohol level. The Court did not find these circumstances to be the imminent destruction of evidence necessary to satisfy the exigent-circumstance exception to the warrant requirement of the Fourth Amendment. Likewise, in the case at bar, we do not believe that the activities at Herrick Lane justified the exigent-circumstance exception. We hold that the officer's warrantless entry into appellant's residence was improper. The police lacked both the probable cause and exigent circumstances necessary to make a warrantless entry into a home. Consent to Search

The State maintains that even if exigent circumstances did not justify the officer's warrantless entry into appellant's residence, the evidence obtained by the officer after theentry is not subject to suppression because the entry was consensual. We disagree. The analysis is two-fold (1) whether appellant's consent was a fruit of the prior illegal search under Wong Sun v. United States, 371 U.S. 471 (1963); (2) whether his consent was "voluntary."

Fruit of the Poisonous Tree

First, the "fruit of the poisonous tree" doctrine provides that evidence obtained by the exploitation of a primary illegality must be excluded. Wong Sun, supra. On the facts of this case, we conclude that appellant's consent to search his residence and the evidence discovered as a result of that search were fruits of the initial illegal intrusion by the officers. Notably, the officers asked appellant if they could search his house only after they had illegally entered the dwelling and observed the contraband. Further, Detective Siegler testified that appellant was under arrest when he was advised of his Miranda rights. Also at this time, appellant repeatedly stated that he was going to jail.

The plain-view doctrine does not apply in this case. Arkansas Rule of Criminal Procedure 14.4 provides that an officer, during the course of an otherwise lawful activity, may seize such things that he reasonably believes to be subject to seizure. The fact that the officers' initial intrusion was unlawful takes the evidence outside the plain-view exception. Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991).

Involuntary Consent

With regard to the second part of the analysis, a heavy burden rests upon the State to prove by clear and positive testimony that consent to a search was freely and voluntarilygiven and not the product of duress or coercion. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997); Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987). On appeal, this court makes an independent determination, considering the totality of the circumstances, as to whether the State has met that burden. Guzman v. State 283 Ark. 112, 672 S.W.2d 656 (1984). At trial, Detective Flannery testified that he did not threaten appellant and that he told appellant that he did not have to sign the consent form.

A warrantless entry made with consent does not violate the Fourth Amendment. Illinois v. Rodriguez, 497 U.S. 177 (1990). However, mere acquiescence to a claim of lawful authority is not consent. Alford, supra. Conduct that is questionable or clearly indicates mere acquiescence to perceived police authority will not support a search based on the party's alleged consent, regardless of the lack of coercion. Id. Here, at the time appellant's consent was obtained, he knew that Detective Flannery had already observed the incriminating evidence in his garage. In Holloway v. Wolff, 482 F.2d 110 (8th Cir.1973), the consent to search the appellant's residence was obtained after a search had been carried out pursuant to an invalid warrant. The appellant was "face to face with the incriminating evidence and able to see that the police had firm control over her home." 482 F.2d at 115. The court held that the appellant's alleged consent constituted nothing more than acquiescence to a claim of lawful authority and, therefore, that the consent was invalid. Likewise in the case at bar, appellant knew that the police had already found drug paraphernalia and other related items when they requested his consent to search. It is evident that appellant felt that his refusal to consent would be of no moment because he keptrepeating to the officers that he was going to jail. Just as in Holloway, appellant's alleged consent amounted to nothing more than mere acquiescence. From our review of the totality of the circumstances, we cannot conclude that appellant's consent was freely and voluntarily given and not the product of duress or coercion.

Based on both a fruit-of-the-poisonous-tree analysis and a voluntariness analysis, we conclude that appellant's consent to search his residence was invalid. From our review of the totality of the circumstances, we conclude that the trial court erred in denying appellant's motion to suppress.

Reversed and remanded.

Jennings and Robbins, JJ., agree.