Williams v. State

Houston WILLIAMS and Kathlene Williams v.
STATE of Arkansas

CR 96-834                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 10, 1997


1.   Search & seizure -- plain-view doctrine -- when applicable. -- The
     plain-view doctrine may be applied under the following
     circumstances: (1) when the initial intrusion was lawful; (2)
     when the incriminating nature of the items was immediately
     apparent; and (3) when the discovery of the items was
     inadvertent; the observation of items in plain view is not a
     search.

2.   Search & seizure -- items discovered during search were not in plain view
     -- initial search of appellants' home unlawful. -- Where incriminating
     items discovered by a police officer during a search of
     appellants' residence were not in his plain view but were
     found by moving a bag of cookies and opening a desk drawer,
     the most elemental aspect of the plain-view doctrine was not
     met; once an officer's activity crosses the line from
     observation into a probing quest for evidence, a search has
     begun, and the realm of the plain-view doctrine is left
     behind; here, a warrantless search of appellants' residence
     took place; warrantless searches of a suspect's home are
     presumptively unreasonable; the State has the burden of
     proving that such a search is reasonable; as none of the
     exceptions to the warrant requirement could be shown by the
     State, the initial search conducted in appellants' home was
     unlawful.    

3.   Search & seizure -- independent-source doctrine. --  While the
     exclusionary rule prohibits the introduction of tangible and
     testimonial evidence derived from an unlawful search, such
     evidence may nonetheless be admissible if discovered through
     an independent source; this is referred to as the
     "independent-source doctrine." 

4.   Search & seizure -- determination of illegality's effect on validity of
     warrant -- first prong of Murray test weighed in favor of warrant
     validity. -- Pursuant to Murray v. United States, 487 U.S. 533
     (1988), in order to determine the effect of the illegality on
     the validity of the warrant, the first step after excising the
     offending information from the probable-cause affidavit is to
     determine whether the affidavit nevertheless supports the
     issuance of a search warrant; here, the affidavit contained a
     wealth of information about appellants' possible drug-
     trafficking activities; even in the absence of the information
     obtained in the prior search, officers had detailed
     information from three confidential informants, plus the
     statement of a man who had just come from appellants'
     residence; the first prong of the Murray test weighed in favor
     of the validity of the warrant.

5.   Search & seizure -- second prong of Murray  -- key considerations. -- The
     second prong of Murray focuses on the motivation of the
     officers in obtaining the warrant; a key consideration in
     determining this issue is the "relative probative import" of
     the information secured during the illegal search "compared to
     all other information known to the officers"; while the police
     should not profit from illegal activity, neither should they
     be placed in a worse position than they would otherwise have
     occupied. 

6.   Search & seizure -- ample information existed to support warrant --
     independent-source doctrine permitted introduction of evidence seized after
     warrant obtained. -- Where, when asked at the suppression hearing
     to explain the basis for his request for a search warrant of
     appellants' residence, the officer reviewed not the items
     seized from the illegal search, but the information received
     from the confidential informants, the statement acquired from
     an arrested dealer, and the surveillance conducted by
     officers, the supreme court determined that the officers were
     not prompted to obtain the search warrant only after obtaining
     the tainted information; because the officers collected ample
     information to support a search warrant, independent of and
     prior to the items found in the illegal search, the
     independent-source doctrine permitted the introduction of
     evidence seized after the search warrant; to hold otherwise
     would place the officers in a worse position than they would
     otherwise have occupied; the trial court's order upholding the
     validity of the warrant was affirmed.   
     

     Appeal from Washington Circuit Court; William Story, Judge;
affirmed.
     Robert E. Irwin, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     W.H."Dub" Arnold, Chief Justice.
     Houston and Kathlene Williams are husband and wife.  Houston
Williams was sentenced to a total of thirty years in prison for
possession of marijuana with intent to deliver and possession of
methamphetamine with intent to deliver.  He also received a $25,000
fine.  Kathlene Williams was convicted of the same two offenses,
plus an additional count of possession of methamphetamine with
intent to deliver.  She received a total of fifteen years in prison
and a $10,000 fine.  The Arkansas Court of Appeals reversed and
remanded the convictions on the basis that the search warrant used
to gather evidence against Mr. and Mrs. Williams was illegally
obtained.  Williams v. State, 54 Ark. App. 352, 927 S.W.2d 801
(1996).  We granted the State's petition for review.  Upon our
review, we affirm the decision of the trial court.
     The search warrant that is the subject of this case was
executed at the Williams's home on February 24, 1993.  Pursuant to
the warrant, officers seized, among other items, approximately
eighty-three grams of methamphetamine, approximately twelve ounces
of marijuana, several handguns, and a wall safe containing $8,200
in cash.  The facts leading up to the procurement of the warrant
are set out in detail in the court of appeals opinion, but we will
set them out again here, for the sake of convenience.  On November
12, 1992, the Fayetteville Police Department received information
from a confidential informant that Houston Williams of a certain
address in West Fork, Arkansas, was an extremely large trafficker
of controlled substances.  The informant stated that Williams would
travel to California and Arizona, pick up large amounts of
methamphetamine, then return to northwest Arkansas to distribute
the drug.  The informant further stated that he had seen Houston
Williams with as much as $65,000 in cash at one time.
     On December 31, 1992, the Fayetteville Drug Enforcement
Administration office received word from a special agent in Alpine,
Texas, that the agent had an informant in custody.  The informant
was from northwest Arkansas and stated that Houston and Kathlene
Williams would travel to New Mexico every three weeks, pick up one
to two pounds of methamphetamine and cocaine, then return to
northwest Arkansas to distribute the drugs.
     On February 22, 1993, at approximately 4:00 p.m., Detective
Rogers of the 19th Judicial District Drug Task Force received a
phone call from a confidential informant.  The informant stated
that Henry Glosemeyer and Houston Williams would be leaving the
city of Rogers and driving to the Williams house in West Fork.  The
informant described in detail the two vehicles that would be
driven, including the license-tag numbers.  He said that Glosemeyer
was to pick up a large amount of methamphetamine, then return to
Rogers at 9:00 p.m. to deliver the drugs to his customers. 
Detective Rogers relayed this information to Detective McCarty of
the Fayetteville Police Department.  Upon receipt of the
information, McCarty and four other officers drove to Williams's
West Fork address.  While en route, two of the detectives saw one
of the described vehicles, a gray Mercury Capri, arrive at the
residence.  Approximately three hours later, the other described
vehicle, a red pickup, arrived.  At 8:35 p.m., the pickup left the
residence, driving toward Fayetteville.  Fayetteville police were
notified to be on the lookout for the vehicle.  Shortly thereafter,
officer Brian Waters saw the truck, fell in behind it, and clocked
it at forty-eight miles per hour in a forty-five-miles-per-hour
zone.  When the truck moved into a forty-mile-per-hour zone, he
pulled it over and issued a warning for speeding.  The truck was
being driven by Henry Glosemeyer.  Upon being questioned by Officer
Waters, Glosemeyer gave consent to search the vehicle.  Nothing was
found during the manual search, but the officer's drug dog gave an
active, aggressive alert.  The vehicle was moved from the side of
the road to a facility where a more thorough search could be
conducted.  As a result, two ounces of methamphetamine were found
under the truck bed mat.
     Glosemeyer was arrested and gave a statement.  He said he had
received an extremely large amount of methamphetamine from Houston
Williams over the last year and that he had dealt at least one
pound in the past month.  The methamphetamine that was recovered
from the search of his truck had been received from Houston
Williams that night.  Glosemeyer further stated that Williams had
borrowed his truck, driven to California, and picked up four pounds
of methamphetamine.  Williams had returned that night.
     The next morning, four officers went to the Williams
residence.  At that point, they had been told by the prosecutor's
office that they did not have enough probable cause to obtain a
search warrant.  Upon arriving at the residence, they identified
themselves as narcotics officers.  They asked Kathlene Williams if
they might speak to her husband.  Mrs. Williams allowed the
officers to enter the house.  She said her husband was sleeping. 
They asked her to wake him and she went to the bedroom to do so. 
As she left the living-room area, Officer Norman observed an
automatic pistol on a shelf.  He took possession of it and unloaded
it.  
     Houston Williams came into the living room within a few
minutes.  The officers questioned him and Mrs. Williams in separate
rooms for well over an hour.  They confronted Houston Williams with
the information that indicated he was involved in drug trafficking. 
Williams denied any knowledge of such activity.  Finally, the
officers asked if Williams would consent to a search of the house. 
He said no.
     At the end of the interrogation, and after consent to search
had been denied, Williams said he had to go to the bathroom. 
Officer Norman, without invitation, followed Williams down the hall
and watched him enter into a bathroom off the master bedroom.  The
officer made his way back up the hall, scanning the other rooms
along the way.  He pushed open a partially opened door to the den
and noticed two weapons on a desk.  When Williams came out of the
bathroom, he told Officer Norman that the guns were unloaded and
that he could check them if he liked.  Norman entered the room and,
in doing so, noticed a set of scales on a desk.  He moved a bag of
cookies which were obscuring the scales and saw a white rock
sitting on the scales.  He believed the rock to be a controlled
substance.  Looking further, Norman saw a part of a plastic bag
protruding from a desk drawer.  He opened the drawer and observed
what he suspected to be a controlled substance, along with various
items of drug paraphernalia.  Houston Williams was placed under
arrest.  One of the officers present contacted an assistant U.S.
attorney and advised him of what was in progress.  The attorney
told the officers to leave the premises and obtain a search
warrant.
     The search warrant was obtained later that day and executed on
February 24, 1993.  In the affidavit in support of probable cause,
the officers included the information provided by the two
confidential informants, the statement by Henry Glosemeyer, and the
observation of what appeared to be drugs and drug paraphernalia in
the Williams home.  Also on February 24, Kathlene Williams was
arrested when she appeared at the courthouse to post bail for her
husband.  Her purse was searched and .02 ounces of methamphetamine
was found.  
     At trial, the appellants claimed that the officers' initial,
warrantless search of their home was illegal.  They contended
further that the evidence obtained in the initial search prompted
the officers' decision to obtain a search warrant, making the
warrant illegal as well.  The trial judge agreed that the initial
search of the Williams's home was unlawful.  However, he did not
agree that the illegality of that search affected the validity of
the warrant.  Therefore, the evidence obtained as a result of the
execution of the search warrant was admitted at trial.  The
Williamses argue on appeal that the trial court should have
suppressed that evidence.
     Our analysis on appeal must be twofold.  First, we must
determine whether the evidence obtained by the officers on their
first visit to the Williams home was the result of an illegal
search.  If the search was legal, there is nothing to taint the
warrant.  If the search was illegal, we must then determine the
effect of that illegality on the procurement of the search warrant.
                 Legality of the Initial Search
     The State urges us to hold the initial search constitutional
based upon the plain-view doctrine.  We have said in the past that 
this doctrine may be applied under the following circumstances:  1)
the initial intrusion was lawful;  2) the incriminating nature of
the items was immediately apparent; and 3) the discovery of the
items was inadvertent.  Johnson v. State, 291 Ark. 260, 724 S.W.2d 160, cert. denied, 484 U.S. 830 (1987).  However, the State directs
us to a different standard enunciated in the recent United States
Supreme Court case of Horton v. California, 496 U.S. 128 (1990). 
In Horton, the Court held that the plain-view doctrine is
applicable if the officer has a lawful right of access to the
object and if the incriminating nature of the object is readily
apparent.  The State contends that Horton dispensed with the
inadvertence requirement.  We have not had occasion to discuss this
aspect of the Horton case.  We do not find it necessary to do so
now.  The incriminating items which were discovered by Officer
Norman during the search simply were not in his plain view.  The
most elemental aspect of the plain-view doctrine has not been met. 
The rationale behind the plain-view doctrine is that the
observation of items in plain view is not a search.  Johnson v.
State, supra.  Once an officer's activity crosses the line from
observation into a probing quest for evidence, a search has begun,
and the realm of the plain-view doctrine is left behind.  See
generally State v. Risinger, 297 Ark. 405, 762 S.W.2d 787 (1989)
(although a container on a table was in plain view, its contents
were not; thus the plain-view doctrine did not apply to the
contents).  The incriminating items observed by Officer Norman in
this case -- the rock on the scale, along with the substance and
explicit paraphernalia inside the drawer  --  were not discovered
through mere observation.  In moving the bag of cookies and opening
the desk drawer, the officer crossed the line into a search.  A
similar situation arose in Arizona v. Hicks, 480 U.S. 321 (1987). 
An officer was rightfully inside a residence which he suspected
contained stolen stereo equipment.  When he observed a stereo
turntable, he moved it to look for a serial number.  The Court held
that the officer's movement of the equipment to view it further
constituted a search.  The officer was engaged in a quest for
evidence, as opposed to mere observation of an object without
disturbing it.  
     The facts show that a warrantless search of the appellants'
residence took place.  Warrantless searches of a suspect's home are
presumptively unreasonable.  Guzman v. State, 283 Ark. 112, 672 S.W.2d 656 (1984).  The State has the burden of proving such a
search is reasonable.  Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989).  That burden is particularly difficult in this case in
light of the fact that, just before the search took place, consent
to search was denied.  As none of the exceptions to the warrant
requirement can be shown by the State, we agree with the trial
court that the initial search conducted in the appellants' home was
unlawful.  
                 Legality of the Search Warrant
     Having decided that the warrantless search was illegal, we
move to the question of that illegality's effect on the validity of
the warrant.  While the exclusionary rule prohibits the
introduction of tangible and testimonial evidence derived from an
unlawful search, such evidence may nonetheless be admissible if
discovered through an independent source.  See Murray v. United
States, 487 U.S. 533 (1988).  This tenet is referred to as the
"independent-source doctrine."  Murray involved an illegal entry
into a warehouse where all subsequent activity by the police
officers was suspect.  While unlawfully in the warehouse, the
police officers observed bales of marijuana.  They then sought a
search warrant.  The Court stated:
          The ultimate question, therefore, is whether the
     search pursuant to warrant was in fact a genuinely
     independent source of the information and tangible
     evidence at issue here.  This would not have been the
     case if the agents' decision to seek the warrant was
     prompted by what they had seen during the illegal entry,
     or if information obtained during that entry was
     presented to the Magistrate and affected his decision to
     issue the warrant.

Murray, 487 U.S.  at 542.  The first prong of Murray is usually
approached by excising the offending information from the probable-
cause affidavit and then determining whether the affidavit
nevertheless supports the issuance of a search warrant.  See United
States v. Restrepo, 966 F.2d 964 (5th Cir. 1992), cert. denied, ___
U.S. ___, 113 S. Ct. 968 (1993); United States v. Herrold, 962 F.2d 1131 (3rd Cir.), cert. denied ___ U.S. ___, 113 S. Ct. 421 (1992). 
The affidavit in this case contained a wealth of information about
the Williams's possible drug-trafficking activities.  Even in the
absence of the information obtained in the prior search, officers
had detailed information from three confidential informants, plus
the statement of Henry Glosemeyer, who had just come from the
Williams's residence.  Thus, the first prong of the Murray test
weighs in favor of the validity of the warrant.
     The second prong of Murray focuses on the motivation of the
officers in obtaining the warrant.  A key consideration in
determining this issue is the "relative probative import" of the
information secured during the illegal search "compared to all
other information known to the officers."  United States v.
Restrepo, supra, at 972.  While the police should not profit from
illegal activity, neither should they be placed in a worse position 
than they would otherwise have occupied.  Murray, 587 U.S.  at 542. 
     In the instant case, unlike the facts in Murray, there was no
illegal entry.  Kathlene Williams allowed the officers to enter the
residence, and, while the officers testified that they informed
Houston Williams that he could ask them to leave the residence at
any time, he never requested that they do so.  Furthermore, we
think it significant that, when Officer Norman contacted the
prosecutor's office about obtaining a warrant prior to entering the
residence, he was advised that he lacked probable cause.  Thus, we
cannot agree that there was a complete absence of motivation on the
part of the officers to seek a warrant prior to the lawful entry
and subsequent illegal search.  
     Immediately upon lawfully entering the house, Officer Norman
observed a Smith & Wesson .9 millimeter automatic pistol on top of
a dresser.  While the officers were present, Ronald Fox, whom they
had documented as dealing in methamphetamine, arrived at the home
but would not enter the residence.  This evidence, obtained prior
to the illegal search, could be properly considered by the issuing 
magistrate.  
     When asked at the suppression hearing to explain the basis for
his request for a search warrant of the Williams residence, Officer
Norman reviewed not the items seized from the illegal search, but
the information received from the confidential informants, the
statement acquired from Glosemeyer, and the surveillance conducted
by officers.  In light of this testimony, we cannot conclude that
the officers were prompted to obtain the search warrant after
obtaining the tainted information.  In any event, as the officers
collected ample information to support a search warrant,
independent of and prior to the items found in the illegal search,
we hold that the independent-source doctrine permitted the
introduction of evidence seized after the search warrant.  To hold
otherwise, we would be placing the officers in a worse position
than they would otherwise have occupied.  Under these
circumstances, we affirm the trial court's order upholding the
validity of the warrant.   
     Affirmed.
     Newbern and Glaze, JJ., dissenting.
=================================================================
                David Newbern, Justice, dissents.
     The majority opinion bases the affirmance in this case upon
Murray v. United States, 487 U.S. 533 (1988), and its exposition of
the independent-source doctrine.  In the Murray case, the Supreme
Court's opinion states that the United States District Court found
that agents who conducted an illegal search prior to obtaining a
search warrant "did not reveal their warrantless entry to the
Magistrate" who subsequently issued a search warrant.  487 U.S.  at
543.  In discussing the independent-source doctrine, Mr. Justice
Scalia, on behalf of the Supreme Court majority, wrote:

          The ultimate question, therefore, is whether the search
     pursuant to warrant was in fact a genuinely independent source
     of the information and tangible evidence at issue here.  This
     would not have been the case if the agents' decision to seek
     the warrant was prompted by what they had seen during the
     initial entry, or if information obtained during that entry
     was presented to the Magistrate and affected his decision to
     issue the warrant. 
 
487 U.S.  at 542 (emphasis added, footnote omitted).
     It is no wonder the State does not cite the Murray case in
this appeal; rather, it cites Segura v. United States, 468 U.S. 796
(1984), with a "Cf." signal in support its independent-source
doctrine argument.  The Segura case, as described in the Murray
case opinion, "held that police officers' illegal entry upon
private premises did not require suppression of evidence
subsequently discovered at those premises when executing a search
warrant obtained on the basis of information wholly unconnected
with the initial entry."  487 U.S.  at 535, emphasis added.
     The State's petition for review and the majority opinion
acknowledge that the affidavit presented to the judge who issued
the search warrant contained information about the previous illegal
search and evidence found in that search.  It is apparent that, in
the circumstances presented here, the Murray case and the
independent-source rule do not apply.
     In its supplemental brief to this Court on review of the Court
of Appeals decision, the State asks that we evaluate the search
warrant affidavit by excising the "improper" portion, citing by
analogy Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), which
involved a search warrant affidavit that contained false and
misleading statements.  There we noted that, to disqualify the
affidavit, the statements of the officers must have been
"knowingly" false or made "recklessly" without knowledge of their
truth or falsity.  We held that the evidence did not support any
such conclusion.  We also said, however, that even if such a
conclusion were supported by the evidence, statements in the
affidavit other than those alleged to have been false would have
been sufficient to support the issuance of the search warrant. 
Inconsistent with the language in the Murray opinion, the majority
opinion takes that approach, citing United States Court of Appeals
cases.  
     For any court to say the decision of the judge issuing a
search warrant was not "affected by" the presence of information
such as that presented as the result of an acknowledged illegal
search in this case is to wink at a serious violation of the Fourth
Amendment.
     Some may applaud the majority opinion as overcoming form in
favor of substance or as not letting the guilty get away due to
"technicalities."  Although not a very handsome one,
"technicalities" is another name for the Bill of Rights.  Our duty
is to do what we can to prevent the home of any citizen from being
subjected to unlawful intrusion or search by the government.  The
only way to accomplish it is to hold that evidence obtained as the
direct or indirect result of a constitutional violation is
inadmissible.  The result reached by the Arkansas Court of Appeals
reversing the convictions in this case was correct.  
     I respectfully dissent.
     Glaze, J., joins.