Richard Harold Maxwell v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION II

RICHARD HAROLD MAXWELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-55

January 14, 2004

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[NO. 2001-113-1A]

HON. SAM POPE,

JUDGE

REVERSED AND REMANDED

Robert J. Gladwin, Judge

An Ashley County jury found Richard H. Maxwell guilty of manufacturing methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine. He was sentenced to thirty years' imprisonment. Appellant argues that the trial court erred in denying his motion to suppress because the police officers did not have probable cause to arrest him and because his consent to a search was not voluntary. We agree that the officers lacked probable cause to arrest appellant and, accordingly, reverse and remand.

At the suppression hearing, Crossett Police Chief Tommy Sturgeon, State Police Investigator Dennis Roberts, and State Trooper Michael Daley testified for the State. Two members of the Tenth Judicial District Drug Task Force, Brent Reeves and Ben Philley, who were also present when appellant was arrested, did not testify.

On March 11, 2001, Sturgeon received information that, if a fan was running in appellant's shop building, then he was cooking methamphetamine. On March 12, Sturgeon and the other officers went to appellant's residence to conduct a "knock and talk." Daley testified

that when police officers ask for consent to search as part of the "knock and talk," they usually use only two officers but that five officers in three cars arrived at appellant's residence that day. When the officers got to appellant's residence, the front door to the shop building was open and the fan was running. Appellant and Brandon Anderson were standing outside between the residence and a shed. According to the officers, both men turned and walked in a hurried manner around to the back of the shed. Roberts, Reeves, and Philley ran after the men. Roberts said that appellant stopped himself at the back of the shed and that he did not think anyone even touched appellant. The officers then brought the two men back to the front of the shed. Roberts testified that he did not consider appellant to be in custody at that time. Although it was not in his report, Roberts stated that he remembered on the morning of the suppression hearing that appellant had said all the stuff was his and Anderson did not have anything to do with it. In gaining consent to search, Roberts said that appellant was told that they had received a tip that he was cooking methamphetamine and that, based on the fact that they smelled ether coming from the shop as soon as they exited their vehicles, they wanted consent to search. All of the officers testified that appellant consented to the search. Roberts read the consent-to-search form to appellant. According to Roberts, appellant was at that point placed under arrest. The officers agreed that they did not see anything that would indicate that they should arrest appellant when they first arrived on the scene.

Appellant and his eight-year-old son testified. Andrew Maxwell testified that his father was working on a lawnmower when the police drove up to their residence. He stated that he and his friend had been jumping on a trampoline but that they ran inside when they saw that the police had guns in their hands. Appellant testified that the sight of the guns scared him, which was why he went behind the shed. He stated that he did not know they were police officers until they tackled him and put handcuffs on him behind the shed. Appellant said that he was told he was under arrest for possession of anhydrous ammonia. He testified that Roberts told him he was going to call Social Services to come and get his kids and that he would lock the house and put him in jail for a hundred years unless appellant "played ball" with him and told him what he wanted to know. Appellant acknowledged that he signed the consent-to-search form but stated that he did so because he felt he did not have a choice. He testified that he did not read the form and that no one read it to him.

In denying appellant's motion to suppress, the trial court found that the officers had the right to pursue appellant because he fled from them before they even said anything. The trial court pointed out that the officers were acting on a tip that was corroborated by circumstances that the officers themselves observed. Thus, the trial court found that the officers had a right to approach appellant and that approaching him was not a seizure. Further, the trial court found that the officers had probable cause to arrest appellant after he had thrown down a bag of methamphetamine and made an incriminating statement. Finally, the trial court found that appellant had voluntarily consented to the search.

Our standard of review for a trial court's decision to grant or deny a motion to suppress requires us to make an independent determination based on the totality of the circumstances, to review findings of historical facts for clear error, and to determine whether those facts give rise to reasonable suspicion or probable cause, while giving due weight to inferences drawn by the trial court. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). Arkansas Rule of Criminal Procedure 2.1 defines "reasonable suspicion" as a suspicion based on facts and circumstances that, standing alone, do not give rise to the reasonable cause necessary to justify a lawful arrest, but which exceed a bare suspicion. A police officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a felony. Ark. R. Crim. P. 4.1(a)(i) (2003). Reasonable or probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. See Jones v. State, 348Ark. 619, 74 S.W.3d 663 (2002). In assessing the existence of reasonable or probable cause, our review is liberal and is guided by the rule that probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Id. All presumptions are favorable to the trial court's ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Id.

Appellant argues that, although the trial court chose to characterize his walking hurriedly as "fleeing," none of the officers testified that he fled from them. He maintains that there are no cases in support of the position the trial court took in stating that the police had a right to run after him and arrest him when he simply walked away from them. Due deference is given to the trial court's findings in the resolution of evidentiary conflicts and determinations of credibility. Anderson v. State, 79 Ark. App. 286, 86 S.W.3d 403 (2002). The trial court could have reasonably determined that appellant's walking away in a hurried manner amounted to some form of evasion or "flight." The trial court did not explicitly state that the fact that appellant fled contributed to its finding of probable cause to arrest, although flight is one factor to consider in determining whether probable cause exists to support a warrantless arrest. See Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987). The trial court did not err in its finding that the officers had every reason to pursue appellant, apprehend him, and briefly detain him in order to verify his identification and determine the lawfulness of his conduct because such action is authorized by Ark. R. Crim. P. 3.1 (2003). A seizure does not occur simply because a police officer approaches an individual to ask questions related to an investigation. Moreover, police pursuit of a suspect or their ordering the suspect to stop is generally not a seizure. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001) (citing United States v. Thompkins, 998 F.2d 629 (8th Cir. 1993)). Rather, a seizure occurs only if, in view of all of the surrounding circumstances, a reasonable person would not feel free to ignore the police presence and go about his business. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). Further, there must be a physical application of force by the officer or submission to the officer's show of force or authority. See Smith, supra. Here, we find that appellant was seized when he submitted to these officers' show of authority at some point behind the shed and that probable cause for his arrest did not arise until after he was seized. According to Roberts, appellant made the incriminating statement as they were walking with him back to the front of the shed. In other words, appellant made the incriminating statement only after he had submitted to the officers' show of authority. The trial court erred in finding that probable cause existed on the basis of appellant's incriminating statement.

The trial court also based its finding of probable cause on testimony that appellant dropped a bag of methamphetamine. The trial court erred in finding that probable cause existed on this alternative basis as well because neither Daley's nor Roberts's testimony disclosed at what point appellant attempted to rid himself of the incriminating evidence. Officers Philley and Reeves, who actually saw appellant drop the bag of methamphetamine, did not testify. As a result, there is simply a total lack of evidence on this point.

The "fruit of the poisonous tree" doctrine provides that evidence obtained by the exploitation of a primary illegality must be excluded. Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991). Appellant consented to a search only after he had been arrested without probable cause. We conclude that appellant's consent to search his residence and the evidence discovered during that search were the fruits of the illegal arrest and should have been suppressed.

Reversed and Remanded.

Stroud, C.J., and Baker, J., agree.