Wesley Bulloch and Stephen Dalton v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-060

DIVISION IV

WESLEY BULLOCH and STEPHEN DALTON

APPELLANTS

v.

STATE OF ARKANSAS

APPELLEE

CACR05-60

DECEMBER 7, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR-2004-2094]

HONORABLE BARRY ALAN SIMS, CIRCUIT JUDGE

REVERSED and REMANDED

Karen R. Baker, Judge

Appellants Stephen Dalton and Wesley Bulloch each entered a conditional guilty plea in Pulaski County Circuit Court to possession of controlled substance (cocaine), possession of controlled substance (Xanax), and possession of drug paraphernalia. Appellant Dalton also conditionally pled to maintaining a drug premises. Appellants' sole point on appeal is that the trial court erred in denying their motion to suppress evidence as a result of a warrantless entry into the home. We agree, and reverse and remand appellants' convictions.

On February 19, 2004, Officer Tina Moore and Detective Sheffield, with the Little Rock Police Department, went to 7309 Elm Street due to complaints received concerning narcotic activity, loud music, underage drinking, driving in a neighbor's yard, and parking problems. Upon arrival, two subjects, Christopher Burns and appellant Wesley Bulloch, drove up, exited a vehicle, and went onto the porch. When inquiring about appellant Dalton, the subject of the complaints, Officer Moore was informed that neither subject was Dalton. Bulloch then went into the house to retrieve Dalton, but when he attempted to shut the door, Officer Moore stuck her foot in the doorway, blocking it from being shut. She testified that she did this to keep Bulloch in her sight, for her safety. Once Dalton came to the door, Officer, Moore explained to him that she

was a police officer needing to talk to him about a complaint; he then turned and walked back into the residence with Officer Moore following and Detective Sheffield standing inside the doorway. Detective Moore was explaining to Dalton that she had received various complaints when Detective Sheffield got her attention and told her that he observed what appeared to be powder cocaine in the kitchen. They then secured the residence and obtained a search warrant, as a result of which they found cocaine, marijuana, scales, pipes, and pills.

On May 10, 2004, appellants were charged with possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, possession of Xanax with intent to deliver, possession of drug paraphernalia, and maintaining a drug premises. A motion to suppress the evidence was filed on July 8, stating that the charges stemmed from a warrantless search which violated the Fourth Amendment to the United States Constitution and Article 2, ยง 15 of the Arkansas Constitution. The motion was denied on September 7, following a suppression hearing, and appellants later entered a conditional guilty plea. This appeal followed.

Appellants' point on appeal is that the entry into appellant Dalton's home was illegal and in violation of the Fourth Amendment to the U.S. Constitution. Thus, the items seized, as a result of this illegal search, should have been suppressed. The argument is premised upon the facts that Officer Moore stuck her foot in the door, preventing appellant Bullock from closing it, and that appellant Dalton never gave consent to enter his home.

The State initially argues that appellant Bulloch had no standing to contest the validity of the search. In its brief, the State asserts that there is no evidence that Bulloch owned, leased, maintained control over, or was an overnight guest at the residence. This assertion is contrary to the evidence. In fact, it appears the State essentially conceded to the issue of Bulloch's standing at the suppression hearing.

Officer Moore testified as follows:

Q. And at some point, didn't Mr. Bulloch state to you that the, I guess, that the green - the room with the green painting was his?

. . . .

A. Okay. Yeah, he told me that. Furthermore, at the conclusion of the suppression hearing the State argued that "they don't have any standing. No testimony has been put on to show that they live in the residence. "They were only all there overnight guests." Thus, it appears that the State conceded that Bulloch was an overnight guest. Furthermore, Officer Moore testified that Bulloch maintained control over or was an overnight guest at the residence and that he identified his specific room; she noted that information in her report.

The "capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Minnosota v. Olsen, 495 U.S. 91, (1990) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). A subjective expectation of privacy is legitimate if it is "one that society is prepared to recognize as `reasonable,' Id. quoting Katz v. United States, 389 U.S. 347 (1967).

As stated in Olsen, supra:

To hold that an overnight guest has a legitimate expectation of privacy in his host's home merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another's home is a longstanding social costume that serves functions recognized as valuable by society. We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home.

From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside.

Olsen, 495 U.S. at 98. (Emphasis added.) Therefore, we hold that the State's argument that appellant Bulloch lacked standing is without merit and address appellants' argument that the trial court erred in denying their motion to suppress.

On review of a trial court denial of a motion to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Davis. State, 351 Ark. 406, 94 S.W.3d 892 (2003) (citing State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978)). We have given considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts. Id.

A warrantless entry into a private home is presumptively unreasonable under the Fourth Amendment. Katz, supra; Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). However, the presumption of unreasonableness may be overcome if the law-enforcement officer obtained the consent of the homeowner to conduct a warrantless search. Stone v. State, supra; Holmes, supra. Arkansas Rule of Criminal Procedure 10.1 (2005), defines search as

"any intrusion other than an arrest, by an officer ... upon an individual's person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intrusion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individual's rights under the Constitution of the United States or this state."

(Emphasis added.) Further, a search occurs whenever something not previously in plain view becomes exposed to an investigating officer. Norris, supra.

Officer Moore's initial intrusion occurred when she stuck her foot in the doorway preventing Bulloch from closing it. Her entry must be viewed as illegal unless the State established the availability of an exception to the warrant requirement. Wofford v. State, 330 Ark. 8, 952 SW.2d 646 (1997). An exception ... is where, at the time of entry, there exists probable cause and exigent circumstances. Mann v. State, 357 Ark. 159, 161 S.W.3d 826 (2004). Exigent circumstances are those requiring immediate aid or action, and, while there is no definite list of what constitutes exigent circumstances, several established examples include the risk of removal or destruction of evidence, danger to thelives of police officers or others, and the hot pursuit of a suspect. Id. Our case law requires us to only examine those exigent circumstances that existed at the time of entry. Id. Obviously, a warrantless entry that occurs before the exigent circumstance exists violates the Fourth Amendment.

Officer Moore testified during the suppression hearing, that she kept her foot in the door to keep her eye on Bulloch for her safety but that her only reason for fearing for her safety "was just knowing that there were three guys drinking ... nothing other than that." This testimony is insufficient to establish exigent circumstances.

The State argues that Dalton freely and voluntarily consented to the officers' entry into his home. However, the State has a heavy burden to prove by clear and positive testimony that a consent to search was freely and voluntarily given. Stone, supra: Holmes, supra; Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999); Dendy v. State, ___ Ark. App.___, ___S.W.3d ___ (Nov. 30, 2005). A valid consent to search must be voluntary, and "voluntariness is a question of fact to be determined from all the circumstances. Stone, supra; (quoting Ohio v. Robinette, 519 U.S. 33, (1996)). Any consent given must be unequivocal and may not usually be implied. Stone, supra; Holmes, supra; Norris, supra; Dendy, supra.

In Holmes, a police officer followed an individual into a private home with no verbal invitation to do so. Once inside the officer detected a smell of recently burned marijuana, and questioned the subject about where the marijuana was located. Upon determination of whether or not the search was reasonable, the court relied upon Payton v. United States, 445 U.S. 573, (1980), where the United States Supreme Court wrote:

The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.

. . . .

It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.

. . . .

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home - a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." [Citation omitted.] In terms that apply equally to seizures of property and to seizures of person, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton, 445 U.S. at 585. Further, the court noted that, "with few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Holmes, supra; (quoting Kyllo v. United States, 533 U.S. 27, (2001)).

Although the State argues that there is clear and positive testimony that Dalton freely and voluntarily consented to the officers' entry into his home, the basis of their argument is that Officer Moore told Dalton she needed to speak with him, and he turned and went into the living room. At most, the State is making an "implied consent" argument. The State also claims that Dalton presented no evidence that he did not consent to the officers' entry into his home.

The concept of "implied consent" was examined in Holmes, supra and Norris, supra, where the supreme court looked to U.S. v. Gonzalez, 71 F.3d 819 (11th Cir. 1996), and wrote:

The question of "implied consent" ... was more closely examined in U.S. v. Gonzalez, supra. In Gonzalez, the officer approached an individual outside her home and asked if she would consent to a search of her home. Following a conversation with her daughter, she told the officer she wanted to go inside and geta drink of water. The officer then told her he "wanted to go in" with her, and when she did not bar him from going in, he followed her inside. The Eleventh Circuit held that there was no consent to enter:

We have previously noted our hesitancy to find implied consent (i.e. consent by silence) in the Fourth Amendment context, and we agree with our colleagues in the Ninth Circuit that whatever relevance the implied consent doctrine may have in other contexts, it is inappropriate to `sanction entry into the home based upon inferred consent.' Gonzalez then quoted from U.S. v. Shaibu, 920 F.2d 1453 (9th Cir. 1990), to which it had referred above:

The government may not show consent to enter from the defendant's failure to object to the entry and consent by entry. "This will not do." Johnson v. United States, 333 U.S. [10] at 17 [68 S. Ct. 367, 92 L. Ed. 436 (1948)]. We must not shift the burden from the government - - to show "unequivocal and specific" consent - -to the defendant, who would have to prove unequivocal and specific objection to a police entry, or be found to have given implied consent.

Holmes, 347 Ark. at 539, 65 S.W.3d at 865.

We hold that under the totality of the circumstances, the State failed to prove the warrantless search was reasonably justified.

Accordingly, we reverse and remand.

Crabtree and Roaf, JJ., agree.