Luke Edward Pearson v. State of Arkansas

ar04-288

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

LUKE EDWARD PEARSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-288

January 26, 2005

APPEAL FROM THE POPE

COUNTY CIRCUIT COURT

[CR-03-284]

HONORABLE JOHN S. PATTERSON,

CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Following the trial court's denial of his motion to suppress, appellant, Luke Pearson, entered a conditional plea of nolo contendere to the offense of possession of a controlled substance (marijuana) with intent to deliver, a Class C felony. He was sentenced to forty-two months' probation, 168 hours of community service, and an $850 fine. He appeals pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, challenging the trial court's denial of his motion to suppress. We affirm.

Appellant was a student at Arkansas Tech University, living in a university dorm room. On February 24, 2002, he signed a housing contract for room and board, covering the period of fall 2002 through spring 2003. Paragraph 6 of that contract provided:

6. Prohibited Items. The following are not permitted in residence halls: operation of a private business, smoking, space heaters, air conditioners, waterbeds, fireworks, firearms or other weapons, explosive material, alcoholic beverages, illegal drugs, incense, candles, anything with an open flame, halogen lamps, hot plates, suntan lamps, multiple socket plugs, any appliances with an open heating coil. Appliances used in Resident's rooms must meet the specifications of

the Office of Residential Life and be U.L. approved. Only pets for the visually impaired are permitted.

(Emphasis added.) In addition, paragraph 12 provided:

12. Right of Entry. The University reserves the right to enter Resident's room in case of emergency, to make routine maintenance or safety inspections, to maintain health and safety standards, and to enforce the rules and regulations of Arkansas Tech University and the State of Arkansas.

(Emphasis added.)

On April 29, 2003, two resident assistants, Leesa Beck and Josh Zimmerman, were conducting a routine maintenance/safety inspection pursuant to paragraph 12 of the contract. Ms. Beck testified that she and Mr. Zimmerman entered the suite occupied by appellant and that there was an overwhelming smell, a blanket covering the door, and an open window. She testified that as she walked toward the window, she noticed "small green looking stuff" that was "vegetable and leafy" on a table next to the window. They also saw "alcohol in the trash can that was just laying on top of the trash can," in "alcohol beverages or empty bottles." She stated that she and Mr. Zimmerman left at that time, called the police, and Officer Hull responded.

Ms. Beck described appellant's room as a "double room, but he was the only one living in that room at that time." He did not have a roommate. She stated that each resident was required to attend a meeting during the first three days of class wherein residents were informed that monthly safety/security checks would be conducted. She said that it was "ordinary to do safety and security checks on a regular basis," that it was university policy to post advance notice twenty-four hours before conducting the checks, but that appellant "did not give us specific permission to be in his room on that day."

Officer Tim Hull, a certified law enforcement officer with Arkansas Tech University, testified that he responded to the call from the two resident assistants on April 29, 2003. He said that he and Ms. Beck and Mr. Zimmerman then returned to appellant's room, and that Beck and Zimmerman pointed out the green leafy substance that appeared to be marijuana. He stated that it amounted to less than an ounce. He acknowledged that he asked Ms. Beck to go downstairs and wait on appellant, and that he then stated to Mr. Zimmerman, "Let's look around." He said that in doing so, Mr. Zimmerman opened a desk drawer and found a "one gallon ziploc bag containing a green leafy substance." He testified that in another desk drawer, "there was also a green leafy substance ... along with scales and pipes and papers, et cetera." He said that one of the gallon Ziploc bags contained a bulky substance and that the other Ziploc bag contained several smaller bags rolled up with the substance in it. He stated that when appellant eventually came to the room, he asked appellant, "Whose is this?" and that appellant stated, "It's not mine. It belongs to a friend of mine." Officer Hull said that he then asked appellant, "Is there anything else in here we need to know about?" and that appellant retrieved a "water bong" from his closet and gave it to Hull. Officer Hull acknowledged that it would have been possible for him to secure the room based on what he had seen in plain view and then to obtain a search warrant.

At the conclusion of the hearing, the trial court stated:

You know I think the signing of the housing contract for room and board, that it basically waives your fourth amendment rights to some extent. I don't think the extent by which a search was conducted by the university law enforcement officer requires a search warrant under the circumstances here. So the court will deny the motion to suppress.

For his sole point of appeal, appellant contends that the "second, warrantless search" of his residence was illegal, and that the motion to suppress the results of that search should have been granted.1 We disagree.

Consent

The law is well settled that a warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search. Blackwell v. State, 338 Ark. 671, 1 S.W.3d 399 (1999). In Love v. State, 355 Ark. 334, 341, 138 S.W.3d 676, 680 (2003), our supreme court explained:

We have said that a warrantless entry into a private residence is presumptively unreasonable under the Fourth Amendment. See Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002); Welsh v. Wisconsin, 466 U.S. 740 (1984). That presumption may be overcome, however, if the police officer obtained consent to conduct a warrantless search. See Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). See also Ark. R. Crim. P. 11.1 (2003) ("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."). Consent to search the premises can only be given by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent. See Ark. R. Crim. P. 11.2(c) (2003). Any search based on consent cannot exceed, in duration or scope, the limits of the consent given. See Ark. R. Crim. P. 11.3 (2003).

Appellant acknowledges that the initial search of his room by the resident assistants was legal because of the consent that he gave in his housing contract with the university, and that, therefore, the smaller amount of marijuana and the empty alcohol containers, which were in plain view, were legally seized. His argument is that the trial court erred in denying his motion to suppress the items that were found after Officer Hull entered his room in what appellant characterizes as the second, warrantless search of his residence. He contends that the second search was "unrelated to the inspection authorized by the housing contract," and that "the housing contract cannot be interpreted as somehow authorizing any additional inspection or search." We do not agree.

The right of entry authorized by appellant's signature on the housing contract included not only the right to enter to make routine maintenance or safety inspections, but also to enforce the rules and regulations of Arkansas Tech University and the State of Arkansas. Even viewing the case as appellant does, i.e., that two separate searches were involved, it is reasonable to conclude that appellant's consent covered both situations. That is, even if the "first search," which appellant acknowledges as legal, was pursuant to a routine maintenance or safety inspection, it revealed prohibited items. The "second search" was then authorized by Paragraph 12's right of entry to enforce the rules and regulations of the university and the State.

Blackwell v. State, 338 Ark. 671, 1 S.W.3d 399 (1999), is somewhat analogous to the situation presented here. In Blackwell, a Pine Bluff dentist executed a contract with the State by which he agreed to make all of his records available in order to satisfy audit requirements under the Medicaid program. He appealed from a conviction for violating the Arkansas Medicaid Fraud Act, and one of his points of appeal was that his Fourth Amendment rights were violated by the State's search and seizure of documents from his place of business. A search warrant was issued in that case, and Blackwell argued that there was no probable cause to support it. The trial court rejected his argument, but it also ruled that Blackwell knowingly and voluntarily gave consent to perform the search, making probable cause unnecessary. In reviewing the case, our supreme court reasoned, "Because the record reflects Blackwell gave his written consent, we affirm the trial court's ruling upholding the State's search." The supreme court went on to explain:

The law is well settled that a warrantless search is valid if conducted pursuant to the knowing and voluntary consent of the person subject to a search. Here, Arkansas's statutes and regulations contemplate that audits may be conducted pursuant to a criminal investigation, and Blackwell was aware that such audits were possible. Yet, he still signed an agreement to participate in Arkansas's Medicaid Program. Because Blackwell consented to the State's entering his office to audit his records, we hold the trial court was correct in denying his motion to suppress.

Blackwell v. State, 338 Ark. at 678-79, 1 S.W.3d at 403 (citations omitted). Here, appellant was aware that entries into his room were authorized pursuant to Paragraph 12 of the housing contract that he signed.

Appellant further contends that Hodge v. State, 332 Ark. 377, 965 S.W.2d 766 (1998), controls the outcome in this case. Again, we do not agree. Hodge was a capital-murder case in which the defendant was convicted of shooting to death his mother, stepfather, and half-sister in their home. In Hodge, our supreme court found it unnecessary to consider the consent issue because it agreed with the State's position that the police officer was allowed to enter and to seize items in plain view because of exigent circumstances. The exigent circumstances were that there was substantial evidence that three members of Hodge's family were missing, that he made a statement that they were dead and had been in the house several days, that he initially refused to allow anyone to enter, and that he had made a cryptic statement that he had not reported it because he was waiting to hear. We fail to see how the facts of the instant case are controlled by Hodge.

Moreover, appellant mistakenly cites Hodge for the proposition that: "even if the initial search of a residence is justified, for example, by exigent circumstances or consent, that justification will only authorize the seizure of those items of contraband discovered in plain view during that initial search," and "`any subsequent search and seizure is limited to that which is in plain view and observed incident to the entry in response to the emergency [or consent].'" (Emphasis is ours, brackets are appellant's in quoting from Hodge.) The court in Hodge did not address consent issues, only exigent circumstances. Appellant's inclusion of the word "consent" with respect to limiting searches to items found in plain view is simply not supported by Hodge.

Totality of Circumstances

In Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003), our supreme court clarified the standard of review of a suppression challenge. The standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Id.; Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003). Thus, even if we did not decide the instant case based upon appellant's consent, we would find that the warrantless search of appellant's room was reasonable based upon an examination of the totality of the circumstances.

Here, while the intrusion complained of was significant, the scope of appellant's legitimate expectation of privacy was tempered by the "right of entry" provision in the housing contract, the mandatory dorm meeting during which residents were informed of the monthly safety/security inspections, and the policy of posting notices twenty-four hours prior to inspections. Moreover, the nature and immediacy of the university's concern about the presence of drugs and alcohol in student dorm rooms is clear. Simply put, the presence of such items in plain view during the initial, uncontested, search of appellant's room warranted the further, more intrusive, search that revealed additional prohibited items.

Affirmed.

Pittman, C.J., and Baker, J., agree.

1 To the extent that appellant relies upon Article 2, Section 15 of the Arkansas Constitution in challenging the search of his dorm room, we examine the constitutionality of the search based only upon the United States Constitution. The trial court based its decision solely upon the United States Constitution; consequently, appellant has not preserved for our review any argument based upon our state constitution. Moreover, appellant states in one conclusory sentence of his argument to the proposition that his statements to Officer Hull were illegally obtained. We do not address the statements because any such argument was neither preserved below for our review nor developed here with convincing argument and authority.