Western Title & Investment Company v. State of Arkansas

ar04-262

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

WESTERN TITLE & INVESTMENT COMPANY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-262

December 15, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR-2002-2725]

HON. CHRIS PIAZZA,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Western Title & Investment Company seeks the reversal of its criminal convictions under Little Rock City Code section 8-583(d), failure to repair life safety violations, for which it was fined $100 per each of the two counts plus costs. Appellant raises the following points on appeal: (1) whether the Fourth Amendment to the United States Constitution is applicable to the states through the Due Process Clause of the Fourteenth Amendment to the United States Constitution; (2) whether an "administrative search" justifies the search of a dwelling without a search warrant based on probable cause naming a particular place to be searched described with specificity; (3) whether probable cause for a search warrant is satisfied by particular language in the applicable Little Rock Housing Code sections; (4) whether Little Rock Housing Code sections 8-355 and 8-357(a) are constitutional; (5) whether the search of a dwelling made either with or without consent of a lessor or a search warrant specifying probable cause and a specific place to be searched is constitutional; (6) whether evidence obtained through an unlawful search is admissible in a state criminal prosecution; (7) whether the soliloquy engaged in by the code enforcement officer and appellant's agent/attorney constituted consent to search. We affirm.

On or about February 8, 2002, Freddy Morgan, a code enforcement officer for the city of Little Rock, was conducting a routine survey on Louisiana Street, at which time he noticed broken windows at 1312 Louisiana. He contacted Code Enforcement Officer Raymond Gary Johnson, who conducts rental-property inspections, and together the officers surveyed the property. In addition to the broken windows, they discovered incomplete stairways and holes in the roof, all violations of the city code. Officer Johnson also inspected several of the rental units upon obtaining consent from the tenants but was unable to inspect all the units.1 Inside the units Officer Johnson found additional code violations including broken windows, water heaters with no relief-valve systems, outlets with receptacles that were broken or missing, ceilings with water damage, fuse panels with no dead front covers, and broken light-switch covers.

On February 21, 2002, Officer Johnson wrote an inspection report listing the violations and mailed it by certified mail to Lynn A. Davis as agent/attorney for appellant, the owner of the property. Mrs. Sue Davis signed for receipt of the inspection report on February 25, 2002. Appellant was given thirty days to repair the "life" safety violations and sixty days to repair the "non-life" safety violations. On April 4, 2002, Officer Johnson contacted Mrs. Davis, who reported that work to correct the violations was in progress.

On April 5, 2002, Officer Johnson returned to 1312 Louisiana, knocked on an open door and found Mr. Davis alone in one of the rental-housing units owned by appellant. The unit had been leased to an unnamed tenant, and Mr. Davis was in the unit repairing alleged deficiencies that were discovered in a previous inspection to which the tenant had consented. Officer Johnson identified himself as a code enforcement officer. There is conflicting testimony as to whether Mr. Davis invited Johnson in to inspect the unit; however, Officer Johnson did enter the unit for re-inspection. At that time Officer Johnson discussed the specific previous violations with Mr. Davis, and Mr. Davis acknowledged having received a copy of the notice. Upon re-inspection, Officer Johnson discovered additional violations and a citation was issued to Mr. Davis, as agent for appellant, for violating section 8-583(d) of the Little Rock City Code - failure to repair life safety violations, at 1312 Louisiana on apartment Nos. 1, 2, 6, 8, 10, and 12.

Appellant pled not guilty at the Little Rock District Court proceeding. Mr. Davis admitted that he did not refuse access to Officer Johnson but alleged that he never gave consent to access and that the law did not require him to object to the entry. He argued that Officer Johnson had no right to be on the property because he did not have a search warrant and that an administrative search warrant did not exist because it is unconstitutional. Appellant was convicted on six counts and fined $1500 and costs. On appeal to the Pulaski County Circuit Court, appellant was found guilty at a de novo bench proceeding of criminal charges under Little Rock City Code, section 8-583(d) (failure to repair life safety violations) and fined $100 per each of the two counts plus costs.

Appellant's initial notice of appeal from the circuit court proceeding stated that "[a] copy of pertinent portions of the transcript taken at the trial of this matter have been ordered from the court reporter." Appellee sought to dismiss the notice of appeal for failure to comply with Rule 2 of the Arkansas Rules of Appellate Procedure - Criminal, after which appellant filed an amended notice of appeal that purported to cure said deficiencies. However, appellant still failed to designate the entire record.

It appears that we have been given less than a complete record in this matter. While the entire transcript of the district court proceeding is included in the record, only nineteen pages of the transcript from the circuit court proceeding are included. More specifically, the court reporter certified only nineteen pages, so there does not appear to be a clerical error. Those nineteen pages were apparently all she was asked to transcribe. The nineteen pages that are included basically set forth the "pre-trial" administrative issues, including the renewal of appellant's motions: (1) asking for a jury trial; (2) regarding discovery; (3) compelling discovery, as well as a discussion about an unavailable witness, and the introduction of the district court order and transcript. The trial judge then asked each party for an opening statement. Appellant's counsel proceeded to argue that the city code provisions are unconstitutional. The State requested an opportunity to respond, and immediately thereafter, the trial judge swore in the witnesses and invoked the rule.

The trial judge and counsel for both parties then discussed a portion of the district court transcript, which had been entered into evidence at that point, dealing with Officer Johnson's entry into the unit and whether or not it occurred pursuant to consent from Mr. Davis. Mr. Davis began to argue about the consent issue; the State objected to the inappropriateness of the argument at that time; and Mr. Davis claimed he was "only arguing on [his] motion that [he] made previously." The last portion contained in the transcribed portion of the circuit court proceeding is a statement made by the trial judge, as follows: "Well, at this point, I'm going to deny their Motion to Dismiss, and we'll listen to what the testimony, you can, you can bring up all of this." Mr. Davis responded with "okay," and the rest of the page is blank.

The rest of the circuit court transcript is comprised only of the attached Defendant's Exhibit 1, the transcript of the district court proceeding. There is no record of any testimony from the circuit court proceeding, nor any rulings, or lack thereof, regarding appellant's attempt to suppress any evidence obtained through the inspection.2 Appellee states that the record indicates that, with the exception of this exchange between the judge and counsel, the circuit court simply adopted the transcript of the district court proceeding and made its decision on the basis of that transcript. We have no way to determine whether or not that is what occurred. The trial judge's last comment seems to indicate that additional testimony was going to be taken. It is appellant's burden to bring up a record sufficient to demonstrate error. See McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).

We cannot reach the merits of many of appellant's arguments because he failed to bring up an adequate record on appeal. Appellant designated limited portions of the record. Specifically, he failed to designate the entire transcript from the circuit court proceeding. This court addressed a similar issue in Larry v. Grady School District, 82 Ark. App. 185, 119 S.W.3d 528 (2003). In Larry, the appellant neither abstracted the hearing transcript nor did she include a copy of the hearing transcript in the record. In that case, the court read Rule 6(e) of the Arkansas Rules of Appellate Procedure - Civil to only allow the court to order supplementation of the record when it is clear that something is missing as a result of error or accident by the court reporter or circuit clerk. Id. There is nothing in the record to indicate that the transcripts of the earlier proceedings are missing due to error or accident by the court reporter or circuit clerk. On the contrary, it seems that appellant chose to leave those documents out of the record. This court has repeatedly emphasized that the appellant bears the burden of bringing forth an adequate record on appeal. Id. The supreme court places the burden on the appellant to bring up a record sufficient to demonstrate that the trial court was in error. Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). When the appellant fails to meet this burden, we have no choice but to affirm. Id. Appellant has failed to provide an adequate record in this case. Furthermore, appellant has failed to provide an explanation for the deficiencies. Due to the absence of a complete record, we are compelled to affirm.

(1) Applicability of Fourth Amendment - Consent to Search

Appellant argues that through the Fourteenth Amendment (U.S. Const. Amend. XIV), the privacy rights guaranteed by the Fourth Amendment (U.S. Const. Amend. IV) are made applicable to, and enforceable against, the states. We do not address the merits on this point because appellant failed to obtain a ruling from the circuit court on the issue. We do not review issues on which a lower court did not rule. Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003). It is appellant's burden to obtain a ruling, and where he fails to do so the argument is procedurally barred on appeal. Id. Even assuming the circuit court adopted the transcript of the district court, which we cannot determine from the portion of the record before us, appellant was still required to obtain a ruling in circuit court as his case began de novo before that court. See McGhee, supra. Additionally, even at the district court level, appellant never introduced any evidence related to this issue. Mr. Davis simply made the argument in his role as counsel rather than when he testified as a witness. We decline to reach the constitutional issue because the case can be disposed of without addressing it. See Feland v. State, 355 Ark. 573, 142 S.W.3d 631 (2004).

(2) Does an "Administrative Search" Justify the Search of a Dwelling Without a Warrant

Appellant makes no real argument on this point but simply references two cases and one A.L.R. 5th section. The appellate courts in this state have long adopted the position that,"[a]ssignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken." Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Additionally, no evidence was presented to establish that Officer Johnson attempted to justify his inspection on the ground that it was an administrative search. Accordingly, we need not address the specificity requirements for a warrant related to this issue.

(3) Is Probable Cause for Warrant Satisfied by Language in the Applicable Code Sections

Appellant references us to the language of Little Rock City Code section 8-583(a), which provides:

It shall be the responsibility of the owner, tenant, or agent in charge of the unit to provide access to the housing inspector into all areas to inspection under this article, pursuant to section 8-355 and section 8-357. The housing inspector may obtain an administrative search warrant in order to gain access to the rental-housing unit. The legislative finding that rental-housing units should be inspected to ensure compliance with the housing code for health, safety and welfare of the occupants shall be deemed to be probable cause for the issuance of the warrant.

Appellant then cites sections of Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), apparently to analogize that the code language does not constitute probable cause for a warrant. Appellee counters, maintaining that because the inspection was conducted pursuant to Mr. Davis's consent, we need not reach the question as to whether probable cause for a warrant existed. As previously discussed in point number two, appellant makes no argument relating to the particular facts of this case, therefore, we need not address it. See Dixon, supra.

(4) Are Little Rock Housing Code Sections 8-355 and 8-357(a) Constitutional

Little Rock Housing Code sections 8-355 and 8-357(a) deal with city code inspections of private property and purport to authorize certain officials to enter into property for the purpose of conducting inspections. Little Rock Housing Code section 8-355 sets forth the city's right of entry, as follows:

The building official and his duly authorized representative upon presentation of proper identification to the owner, agent, or tenant in charge of such property, may enter any building, structure, dwelling, apartment house, or premises, during all reasonable hours, except in cases of emergency where extreme hazards are known to exist which may involve the potential loss of life or severe property damage, in which case the above limitations shall not apply.

Additionally, Little Rock Housing Code section 8-357(a) deals with inspections:

The building official shall make or cause to be made inspections to determine the condition of the dwellings, dwelling units, rooming houses, boarding houses, and premises in the interest of safeguarding the health and safety of the occupants of dwellings and the general public. For the purpose of making such inspection, the building official is hereby authorized to enter, examine, and survey at all reasonable times, all dwellings, dwelling units, rooming houses, boarding houses, and premises. The owner or occupant of every dwelling, boarding or rooming unit, or the person in charge thereof, shall give the building official free access to such dwelling, dwelling unit, or rooming unit or boarding house and its premises, at all reasonable times for the purpose of such inspection, examination, and survey.

Appellant also refers to Little Rock Housing Code section 8-583(a) which states in part, "the housing inspector may obtain an administrative search warrant . . . ." Appellant maintains that this code section recognizes the "incorrectness" of the previous two sections, 8-355 and 8-357(a), which he claims are "very loud encroachments and violations of constitutional as well as case law."

Appellee again contends that we need not address this issue because Officer Johnson did not rely on the language in the code sections to gain access to the unit, but rather proceeded with Mr. Davis's consent. See Feland, supra. The district court ruled that there was consent given by Mr. Davis. We do not know if there was a ruling on the issue by the circuit court, and if so, the outcome of that ruling. Because we have an inadequate record before us, we are unable to conduct a review of any finding the circuit court may have made on this issue. We decline to generally address the constitutionality of these code sections, as to make such a determination would be advisory in nature. Except under very limited exceptions, we do not render advisory opinions or answer academic questions. See Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989); Cooper Tire & Rubber Co. v. Angell, 75 Ark. App. 325, 58 S.W.3d 396 (2001).

(5) Whether the Search of a Dwelling Made Either With or Without Consent of a Lessor or a Search Warrant Specifying Probable Cause and Specific Place to be Searched is Constitutional

This is a hypothetical question posed by appellant that we need not address. Appellant fails to make a proper argument related to the specific facts of this case. The district court ruled that there was consent given by Mr. Davis regarding the re-inspection of the rental unit. We do not know if there was a ruling on the issue by the circuit court judge, or if so, what that ruling was. Again, we do not render advisory opinions or answer academic questions. See Cooper Tire, supra.

(6) Whether Evidence Obtained Through an Unlawful Search is Admissible in a State Criminal Prosecution

As with point number two, appellant makes no substantive argument on this point but simply references one case and one A.L.R. 5th section. This issue as briefed by appellant is wholly unsupported by convincing argument, and we will not consider it on appeal. See Dixon, supra. Appellee references the fact that appellant failed to request a pretrial suppression hearing and maintains that was the proper avenue to address this issue. A party who fails to request such a hearing has no standing to raise the suppression issue at a later point. See Mock v. State, 20 Ark. App. 117, 725 S.W.2d 1 (1987). There is no evidence that appellant requested or received a ruling on the suppression of the evidence concerning code violations, therefore, appellant is barred from questioning the admissibility of that evidence now. To the extent that appellant is attempting to make a more global argument regardingthis factual scenario, it is another request for this court to issue an advisory opinion. We decline to do so.

(7) Did the Conversation Between Officer Johnson and Mr. Davis Constitute Consent to Search

The conflicting testimony of Officer Johnson and Mr. Davis was an issue for the trial court. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). We do not actually know if there was such a resolution by the circuit court; we know only that the district court specifically found that Mr. Davis consented. To analyze this issue as appellant suggests would require us to review the decision of the circuit court, which is impossible because the record is inadequate. It is well settled that the appellant bears the burden of producing a record that demonstrates error, and that we do not consider matters outside of the record on appeal. E.g., Miles v. State, 350 Ark. 243, 250, 85 S.W.3d 907, 912 (2002). The record simply does not place the matters that are argued before this court. For the above reasons, we affirm on this point.

Affirmed.

Stroud, C.J., and Neal, J., agree.

1 Officer Johnson testified in district court that he requested access to all the apartments but that some tenants refused to grant him consent to enter.

2 Appellant did not file a specific motion to suppress or request a suppression hearing, but he discussed and argued the issue in a fair amount of detail in his pretrial brief (R. 15 - 35).