John Otto Downing, Jr. v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOHN B. ROBBINS, JUDGE
DIVISION II
CACR 06-727
SEPTEMBER 26, 2007
JOHN OTTO DOWNING, JR.
APPELLANT
APPEAL FROM THE RANDOLPH
COUNTY CIRCUIT COURT
[NO. CR-2005-42]
V.
HONORABLE HAROLD S. ERWIN,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant John Otto Downing, Jr., appeals his conviction for possession of a controlled
substance (methamphetamine) following the entry of a conditional guilty plea.
Contemporaneously with the guilty plea, appellant reserved in writing the right to appeal the
denial of his motion to suppress. Appellant contends that while he agreed to allow warrantless
searches of his property as part of an earlier suspended imposition of sentence, the search
nonetheless violated his right to be free of unreasonable searches and seizures. We disagree
with his argument and affirm.
The events leading to appellant’s conditional plea are as follows. Appellant’s girlfriend
was arrested on an outstanding warrant and was also found to be in possession of
methamphetamine. While in jail, she was overheard on the telephone saying to the other
person on the line to “get rid of her stuff.” This raised suspicion that appellant’s house held
drug-related items. Appellant, at that time, was on a suspended imposition of sentence for
manufacturing marijuana and possession of drug paraphernalia. A sheriff’s deputy reported
to appellant’s residence with a copy of his suspended-imposition-of-sentence conditions,
which permitted a search of his home without a warrant. The specific condition read, “You
shall submit your person, place of residence, motor vehicles or other property to search and
seizure at any time, day or night, with or without a search warrant, whenever requested
by any law enforcement officer.” Appellant’s house was searched, and a usable amount of
methamphetamine was discovered, along with other contraband. After appellant had been
charged with these additional criminal offenses, appellant’s attorney moved to suppress the
fruits of the search, asserting that the written consent he gave was impermissibly broad
under constitutional considerations. The trial court disagreed. In a deal negotiated with the
prosecutor, he pleaded no contest, resulting in the conditional guilty plea and judgment of
conviction we consider now on appeal.
On appeal from the denial of a motion to suppress, we conduct a de novo review based
upon the totality of the circumstances, reviewing findings of historical fact for clear error,
giving due weight to inferences drawn by the trial court. Thornton v. State, 85 Ark. App.
31, 144 S.W.3d 766 (2004). Thus, the trial court's ruling will not be reversed unless it is
clearly erroneous. See id. The burden is on the State to prove that the warrantless activity
was reasonable. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). With few exceptions,
the question of whether a warrantless search of a home is reasonable and hence constitutional
must be answered, “no.” Kyllo v. United States, 533 U.S. 27 (2001). There is a presumption
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of unreasonableness regarding warrantless entry into a home, but it may be overcome if the
State obtains consent from the homeowner. See Carson v. State, 363 Ark. 158, 211 S.W.3d
527 (2005); Ark. R. Crim. P. 11.1.
Appellant does not contest that he agreed to this provision, such that it is a giving of
consent. Such consent-in-advance clauses are not constitutionally infirm as long as the
consent agreement meets certain criteria. Cherry v. State, 302 Ark. 462, 791 S.W.2d 354
(1990). In order to support a warrantless search, the court reasoned in Cherry (1) that consent
actually be given, (2) that the search be made in accordance with the agreement, and (3) that
the consent have reasonable bounds. It is the third element with which appellant takes issue.
Appellant contends that this consent is too broad and does not advance the goals associated
with being on a suspended sentence.
Undoubtedly appellant gave written consent to search without a warrant by any officer
of the law. Undoubtedly the search of appellant’s house was done in accordance with the
consent. The question boils down to whether the search exceeds constitutional bounds. We
do not believe that it does.
The search, even under the analysis suggested by Cherry, falls within constitutional
parameters. The Supreme Court reasoned in United States v. Knights, 534 U.S.112 (2001),
that the reasonableness of a search depends upon the degree to which the search intrudes on
individual privacy balanced against the degree to which it is needed for the promotion of
legitimate governmental interests. Therein, the Supreme Court upheld the warrantless search
of a probationer’s apartment when authorized by his conditions and supported by “reasonable
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suspicion.” See id. Appellant concedes that this case does not support his argument on appeal
and instead urges our court to adopt an interpretation of the Arkansas Constitution that would
provide greater protection. We decline to do so. This search was done by a sheriff’s deputy,
and it was supported by reasonable suspicion of criminal activity occurring in his home,
specifically possession of illegal drugs or associated paraphernalia. Any argument to be made
to create a greater protection for those on conditional programs was waived for failure to
make it to the trial court. Even had it been made, we see no overriding concern that would
lead us to make such a holding, given that appellant’s suspension was conditioned on living
a law-abiding life.
Before we leave this subject, we note that appellant asserts in his brief that persons on
a suspended imposition of sentence are somehow due greater protection than those on
probation. This is so, he says, because probationers are required to be supervised whereas
persons on suspended imposition of sentence are not. See Culpepper v. State, 268 Ark. 263,
595 S.W.2d 220 (1980); Ark. Code Ann. § 5-4-101 (Repl. 2006). Appellant asserts that
for this reason public policy would support the need to search probationers and their
surroundings. However, appellant gives us no authority to support this rationale. Indeed, in
Young v. State, 286 Ark. 413, 692 S.W.2d 752 (1985), our supreme court held that a condition
of a probation or suspension is not necessarily invalid simply because it restricts a person’s ability
to exercise constitutionally protected rights. A condition of probation or suspension may
affect the exercise of a constitutional right within certain limits, and those limits include a
requirement that it bear a reasonable relationship to the crime and to future criminality. See
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id. We see no meaningful distinction to be drawn where the court must impose certain lawabiding conditions on both a probationer and a person on suspended imposition of sentence.
Ark. Code Ann. § 5-4-303(a) (Repl. 2006).
For the foregoing reasons, we affirm the denial of appellant’s motion to suppress.
Affirmed.
P ITTMAN, C.J., and G LADWIN, J., agree.
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