Jackie Thorne v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR02-820

August 27, 2003

JACKIE THORNE

AN APPEAL FROM FAULKNER COUNTY CIRCUIT COURT

APPELLANT [CACR02-820]

v.

HONORABLE MICHAEL A. MAGGIO, CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Robert J. Gladwin, Judge

Jackie Thorne purported to enter a conditional guilty plea pursuant to Ark. R. Crim. P. 24.3(b) (2002) in Faulkner County Circuit Court to manufacturing methamphetamine, felon in possession of a firearm, possession of drug paraphernalia with intent to manufacture methamphetamine, and maintaining a drug premises. Appellant was sentenced to eight years' imprisonment to be followed by a ten-year suspended imposition of sentence. He raises several points on appeal from the trial court's denial of his motion to suppress evidence: (1) evidence seized in violation of his rights should be excluded; (2) the arresting officers lacked the requisite suspicion to detain him; (3) he did not consent to a search of his home; and (4) the trial court erred in admitting his custodial statement. The State filed a motion requesting transfer of this case to the Arkansas Supreme Court on the basis that the case law is inconsistent regarding what constitutes strict compliance with Rule 24.3(b). Appellant abstracted a writing entitled "conditional guilty plea agreement," which was signed by him and the prosecuting attorney. A supplemental record was later submitted, which includes the trial judge's comments wherein he approved of appellant's conditional guilty plea. Thus, we have jurisdiction to hear the appeal. We affirm the trial court's denial of appellant's motion to suppress evidence.

At the suppression hearing, appellant testified that Officers Travis Thorn and William Tapley came to his door on October 3, 2000. Appellant said that he agreed to speak with the officers and started to walk out the front door to speak with them on the porch but that Officer Tapley walked past him into the house. According to appellant, Officer Thorn told him that they would talk inside. Appellant testified that he did not say to the officers that it was all right for them to come inside but that he followed them into the house. He said that Officer Tapley sniffed the air and began looking around his house. Appellant said that Officer Tapley looked in his kitchen while he stood in the living room and that Officer Thorn told him to sit on the couch. Appellant stated that he never told the officers to stop the search. Appellant testified that at the conclusion of the search, the officers took him outside, cuffed him, and took him to jail. According to appellant, Officer Thorn told him that if he did not sign a statement admitting his guilt, his wife would be arrested and his children would be taken away. Appellant admitted that he was read his Miranda rights before making the statement wherein he took responsibility for the items seized during the search. Officer Thorn testified that he had received an anonymous call that appellant was cooking methamphetamine at his house. Officer Thorn admitted that he did not have enough information at the time he received the anonymous call to obtain a warrant to search appellant's property. He stated that he went to appellant's home hoping to get consent to search. Officer Thorn testified that he and Officer Tapley were dressed in plain clothes, wore their guns in the back, and had on necklace badges. The officers knocked on appellant's door and informed him that they had information that he was cooking methamphetamine. According to Officer Thorn, he asked appellant whether he minded if they looked around and that appellant said, "No, go ahead." Contrary to appellant's testimony, Officer Thorn stated that they did not just walk into appellant's house, but rather they asked if they could come inside and talk with him. Officer Thorn testified that appellant said, "Yeah, come on in." Officer Thorn did not recall whether appellant attempted to go out onto the porch to talk.

Officer Thorn stated that, once they were inside the house, they smelled a strong chemical odor and that appellant explained that a visitor had spilled something on the floor. Officer Thorn testified that he opened the cabinet doors under the sink and found a plastic Sprite bottle that had salt in it and a hose attached. He stated that he recognized this as an HCL generator used in the gassing-off process of making methamphetamine, despite appellant's assertion that he used the device to kill ants. The officers also found two bottles of Heet, two containers of salt, drain opener, Red Devil lye, camping fuel, marijuana, coffee filters, funnels, burned aluminum foil with residue, scales, and two guns. Officer Thorn stated that, after being read his Miranda rights, appellant gave them a statement indicating that the items seized during the search belonged to him. He testified that neither he nor Officer Tapley made any threats or promises in regard to the statement.

Officer Tapley also testified at the suppression hearing. In his testimony, Officer Tapley confirmed that Officer Thorn's testimony was truthful and accurate in all respects.

On appeal from the denial of a motion to suppress, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error while giving due weight to inferences drawn by the trial court. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).

Because appellant's first three arguments are interrelated, they will be discussed together. Appellant argues that he did not consent to a search of his home and that mere acquiescence is insufficient to show that he consented. He contends that, in the absence of a search warrant, the police officers should have acquired written consent. Appellant maintains that, even if the officers had consent to search, they were unlawfully present at his home because they lacked even reasonable suspicion to intervene given that Officer Thorn asserts little more than that they were acting on one anonymous phone call.

Under Arkansas Rule of Criminal Procedure 11.1 (2002), an officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search or seizure. "Knock and talk" is a method used by police officers to obtain valid consent to search. See Hadl v. State, 74 Ark. App. 113, 47 S.W.3d 897 (2001). This tactic has been used by police officers when there is information that drugs can be found in a residence but probable cause for a search warrant is lacking. Id. The procedure can be explained as follows:

The officers ... proceed to the residence, knock on the door, and ask to be admitted inside. Thereafter gaining entry, the officers inform the person that they're investigating information that drugs are in the house. The officers then ask for permission to search and apparently are successful in many cases in getting the occupant's "apparent consent."

See State v. Smith, 488 S.E.2d 210, 212 (N.C. 1997).

Our supreme court recognized in Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002), that in most situations where consent is freely and voluntarily given, the knock-and-talk procedure has been upheld as a consensual encounter and a valid means to request consent to search a house. Of course, the burden rests upon the State to prove by clear and positive evidence that consent was given freely and voluntarily. See Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). Moreover, pursuant to Ark. R. Crim. P. 2.2(a) (2002), an officer can permissibly approach any person to request that they furnish information or otherwise cooperate in the investigation of a crime. See Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002). In other words, the police do not need reasonable suspicion in order to approach a residence and ask the property owner questions related to their investigation. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002).

The State has a heavy burden to prove by clear and positive testimony that a consent to search was freely and voluntarily given. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). A valid consent to search must be voluntary, and "[v]oluntariness is a question of fact to be determined from all of the circumstances." Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218 (1973)). Any consent given must be unequivocal and may not usually be implied. Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999).

Appellant makes much of the fact that Officer Thorn gave two different responses regarding appellant's answer as to whether the officers could come inside and talk to him. Officer Thorn first testified that appellant responded simply, "Yes," but later Officer Thorn stated that appellant said, "Yeah, come on in." Although the responses may have varied in wording, the responses were both affirmative. Notably, these answers were in response to whether the officers could come inside and talk and not in response to whether the officers could search appellant's house. Regarding appellant's consent to search the house, Officer Thorn testified that he asked appellant whether he minded if the officers looked around and that appellant said, "No, go ahead." This testimony was sufficiently unequivocal so that the trial court could find that appellant's consent was given freely and voluntarily.

Finally, appellant argues that "the trial court erred in admitting [his] voluntary statement" and relies on Ark. R. Evid. 104(d) (2002), which provides that the accused does not, by testifying to a preliminary matter, subject himself to cross-examination as to other issues in the case. Appellant further characterizes his incriminating statement as a collateral issue. He maintains that the State was allowed to question him about the statement when it was not relevant to his motion to suppress.

As a general rule, one is not allowed to appeal from a conviction resulting from a plea of guilty or nolo contendere. Ark. R. App. P.--Crim. 1(a) (2002). See Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997). Arkansas Rule of Criminal Procedure 24.3(b) presents an exception to the rule but only for the purpose of determining on appeal whether an appellant should be allowed to withdraw his plea if it is concluded that evidence should have been, but was not, suppressed. Suppression of evidence as contemplated by Rule 24.3(b) presupposes that the evidence was illegally obtained. See Scalco v. State, 42 Ark. App. 134, 856 S.W.2d 23 (1993), rem'd on other grounds, 318 Ark. 65, 883 S.W.2d 813 (1994). Appellant is not contending that his statement was illegally obtained. Instead, appellant is essentially making an evidentiary challenge to the admission of his statement, which he cannot do on direct appeal from a conditional guilty plea under Rule 24.3(b). See id. Accordingly, we lack jurisdiction to consider appellant's final point.

Affirmed.

Bird and Griffen, JJ., agree.