Stephen E. Wiley v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

STEPHEN E. WILEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-6

December 8, 2004

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. CR2002-337IV]

HON. EDWARD T. SMITHERMAN, JR., JUDGE

AFFIRMED

John Mauzy Pittman, Judge

The appellant in this criminal case was arrested after he consented to a police officer's request to search his home when the officer knocked on his door and requested permission to do so. His pretrial motion to suppress items discovered in his home during the search was denied. Appellant subsequently entered a conditional guilty plea to offenses arising out of possession of controlled substances and a firearm discovered during the search. For reversal, appellant argues that the trial court erred in denying his motion to suppress because the police officer who requested permission to search did not advise appellant that he had the right to refuse consent, as required by State v. Brown, ___ Ark. ___, ___ S.W.3d ___ (March 25, 2004). We affirm.

We cannot address appellant's argument because it is not preserved for appeal. Appellant's argument at trial was contained in his motion to suppress, which stated that:

1. Defendant is charged in a four (4) count Information with Possession of Explosives, two counts of Possession of a Controlled Substance and Possession of Firearms by Certain Persons.

2. The arrest was made by Corporal Norris and Investigator DeArmon of the Garland County Sheriff's Office, on April 8, 2002, who went to and entered Defendant's residence allegedly through consent of the Defendant and found the items which form the basis for the criminal charges.

3. Defendant asserts that, pursuant to Article II, Section 8 of the Arkansas Constitution, the action of the State constitutes an illegal search and seizure, and any and all items seized are "fruit of the poisonous tree."

4. Defendant therefore moves that any and all items seized by the officers be suppressed.

A party is bound on appeal by the scope and nature of the objections and argument presented at trial. Wallace v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996). A party is further required to obtain a ruling on the precise issue presented in a motion to suppress in order to preserve that argument for appeal. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). Although objections need not cite specific rules to be sufficient, a specific objection is necessary in order to preserve an issue for appeal. Ellison v. State, 354 Ark. 340, 123 S.W.3d 874 (2003). To be sufficiently specific, the objection must apprise the court of the particular error alleged. See id. Here, appellant's motion to suppress merely asserted that the search was illegal, without explaining the nature of the asserted illegality.1 In order to preserve the current argument for appeal, appellant was required, at the very least, to have presented the essence of his argument to the trial court in a comprehensible fashion, e.g., by stating to the trial court that his consent to search was invalid because the police officer did not advise him that he could refuse to give consent.

A party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997). Even constitutional arguments are waived when they are not argued below. B.C. v. State, 344 Ark. 385, 40 S.W.3d 315 (2001). Because the argument made by appellant on this appeal was never presented to or ruled upon by the trial court, we cannot address it.

Affirmed.

Vaught, J., agrees

Hart, J., concurs.

Josephine Linker Hart, Judge, concurring. I agree that the trial court's decision not to suppress the fruits of the search must be affirmed, however, I would not resort to a procedural bar. While it is true that the argument that Wiley made to the trial court was not as specific and detailed as the argument that we have on appeal, I am compelled to point out that I have studied the transcript in State v. Brown, ___ Ark.___, ___S.W.3d ___ (March 25, 2004), and have found that the appellant in that case did not raise any argument to the trial court, filing neither a brief nor even a response to the motion to suppress. Nonetheless, our supreme court found it sufficient that one of the co-defendants, appellees therein, "specifically raised the issue of an invalid search under Article 2, § 15 of the Arkansas Constitution." I cannot agree that Wiley's motion to suppress, which also asserts that the search was infirm under the Arkansas Constitution, did not exceed the procedural threshold established in Brown.

I readily acknowledge that procedural bars have their place. For example, where the issue is the sufficiency of the evidence, it is vital that a defendant apprise the trial court of where he believes the State's proof is deficient because the State then may have the opportunity to move to reopen the case. See Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). In this way, justice is served. However, where, as in this case, an appellant's argument relies on the overruling of supreme court precedent that interprets the Arkansas Constitution, raising the argument to the trial court is a step that has little practical value. Among the very first lessons that we learned in law school is that inferior courts are bound by the authority of appellate courts. No matter how learned the trial judge may be and how brilliant his insight as to how the issue should be resolved, ultimately, it is the supreme court's call. I think that the well-known legal aphorism, "The law does not require useless acts from litigants as prerequisites to seeking relief from the courts," applies to this situation. See, e.g., State Dept. of Fin' & Admin. v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996). Perhaps this court and our supreme court should formally review the use of procedural bars that knock all-too-many appellants out of court without hearing their arguments.

Regarding the merits of Wiley's arguments, I agree that Brown v. State, supra, should apply to this case. It is a clearly articulated practice of our supreme court, and we are bound to follow that practice. See Looney v. Bolt, 330 Ark. 530, 955 S.W.2d 509 (1997); see also Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985).

However, notwithstanding the retroactive application of Brown v. State, supra, I believe that the trial court's decision not to suppress the fruits of the search should be affirmed. The exclusionary rule exists in large part to deter illegal conduct by our police and should not be applied to deter "objectively reasonable law enforcement activity." Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001)(citing United States v. Leon, 468 U.S. 897 (1984)). Simply stated, at the time of the search, the failure by the police to inform Wiley that he had a right to refuse consent to search was not illegal under King v. State, 262 Ark.342, 557 S.W.2d 386 (1977), the case that Brown overruled, and I cannot conclude that acting in accordance with King was anything but objectively reasonable police conduct.

I concur.

1 Article 2, Section 8 of the Arkansas Constitution deals with a plethora of issues, including the manner in which criminal charges may be brought; double jeopardy; self-incrimination; and bail; but does not address search and seizure. The reference to this section in appellant's motion to suppress therefore did not clarify the nature of his objection. Compare Ark. Const. Art. 2, § 8 to Ark. Const. Art. 2, § 15.