*1 Arkаnsas LATTA v. STATE Mark 88 S.W.3d CR 01-679 Arkansas Court of Supreme 7, 2002 November delivered Opinion December denied for rehearing 2002.] [Petition *3 Firm, for Law R.S. by: appellant. McCullough McCullough, Heil, Gen., Lauren Ass’t Elizabeth by: Att’y Mark Pryor, Att’y Davies, Gen., Gen., and David Ass’t for Att’y appellee. J. Mark Donald L. Latta Corbin, Appellant Justice. Circuit Court the order of Garland County appeals substance, him of a controlled metham- manufacturing convicting Ann. 5- a Class Y in violation of Ark. Code felony, phetamine, § life He was sentenced to a term of 64-401 2001). impris- (Supp. thus, onment; is Ct. court’s jurisdiction pursuant Sup. five on Because l-2(a)(2). R. raises Appellant arguments appeal. trial with that court erred we Appellant denying agree motion we the conviction and reverse Appellant’s suppress, further It is us remand for therefore proceedings. unnecessary to address other raised by Appellant appeal. points us, from before four the record According investigators home East Task Force went Eighteenth Drug after that an anonymous February receiving tip Appellant lab on the maintaining methamphetamine premises. Sanders, Norris, Todd Richard DeAr- were Cory investigators mon, Keck. of the and Brian While some facts what regаrding are in it is when the day happened dispute, undisputed residence, at knocked on the front arrived door, male, and it was a black later identified to be opened by Melvin It is also Arnold. these same officers had undisputed been to residence in October before were him with and knew to be the owner of the acquainted Appellant officers, themselves, home. The who had identified asked if home. was at Arnold that he in the bed- responded clear; room. What next is not suffice to happened entirely say, three of the entered the room and investigators living called out for to come out and talk with them. Sanders, the bedroom door was
According partially open and the officers noticed some movement in the bedroom. The officers then drew their at them the bed- weapons pointed thus, door; bedroom, room when exited the there were three at him. One of officers conducted a guns pointed pat- down search of to check for Appellant’s person weapons. Finding none, the three officers their own put away. Sanders weapons then asked outside and talk to him. step Appellant, time, who at the was barefoot Norris and DeArmon complied. *4 residence, remained inside with three other who along people were at home at that time. outside,
Once Sanders told had received Appellant they an that he was anonymous tip cooking methamphetamine again. denied such and Appellant demanded know any to who activity had contacted the officers. Sanders that he did not explained know the of the identity caller and asked if again was Appellant making methamphetamine. denied accusa- again Appellant Thereafter, tion. Sanders asked if had Aрpellant any methamphet- amine for use. Once there was a as personal conflict to how again, Sanders, events unfolded. subsequent According Appellant use, denied initially having for but any methamphetamine personal when about it confronted admitted that he had some again, finally then stated that bottle in his bedroom. Sanders a brown
in pill bottle. and over him to bedroom turned pill led his Appellant else, if had Appellant asked and anything Sanders Appellant residue on it. him a with methamphetamine handed pie plate Sanders, went on and answer session According questiоn times, there said was more until finally or three Appellant two Then, if could look asked the officers else. Sanders nothing house, agreed. around Appellant with was arrested initially charged possession Appellant information intent to deliver. The was with of methamphetamine arrest, After his to include a charge. later amended manufacturing that he in admitted to was denied that he ever Sanders Appellant bottle or he handed over the brown or that drugs pill possession him that Sanders outside contended kept Appellant pie plates. Further, his and Norris searched housе. while DeArmon Appel- that he never consent for the search. lant stated gave motions, two motions including suppress. filed several pretrial motion, first May The first filed by attorney, made was invalid because it was with- the search alleged consent, which a warrant and was based on out Appellant’s alleged was not voluntarily given. held on 1999. At this hear-
A Denno April hearing door, stated that knocked on Sanders simply ing, male, a black inside. it was by stepped was, black male then asked where and the told They cross-examination, that he was the bedroom. On Sanders them that the black male let them door. stated opening simply he asked what the other officers were while When doing outside, if Sanders said he did not know were conducting any he of search. Sanders admitted that never read his type outside, before him because he was not in Miranda rights taking Sanders, after According repeated custody. questioning, Appel- admitted lant some finally having methamphetamine per- sonal use. Sanders stated that then retrieved voluntarily bedroom, the bottle from as well as the gave plates pie *5 did him. Sanders also admitted that he not obtain written consent and that officers to search lacked cause a search probable get warrant. testified Richard Norris at the Denno
Investigator hearing that entered the residence after Arnold they door. opened admitted that Arnold no indication to the that Norris officers gave fact, stated, could enter the house. In Norris “I don’t think in, he could have us it invited not his house.” also Norris being testified that he went outside with Sanders and initially Appellant, but most of his time He inside house. did hear spent house, Sanders consent to search the but give did hear Appellant admit he had that bottle. Appellant pill DeArmon testified that whеn Investigator Cory Arnold the door he told the officers to “come in.” opened He denied the house searching while Sanders talked with DeAr- Appellant. mon did search; rather, also not hear consent to the was Sanders could search told'by the house. DeArmon did that he saw lead testify Sanders to bedroom and hand other over evidence.
The final witness Brian He testify Keck. Investigator stated that he remained outside the house to contain the At area. no did Keck enter point residence. The trial court 5, 1999, entered written order on subsequently May finding the statements made to officers on were February admissible because he was not in at that time and could custody have told leave at time. any
A second motion was filed suppress current by Appellant’s 27, 1999, counsel on December alleging generally suppres- warranted, sion was because Fourth Amendment had been violated. A rights this second hearing motion to was held on 2000. At suppress April Sanders hearing, testified, but some of again differed from testimony slightly time, what he testified at the Denno This Sanders hearing. door, stated after Arnold he asked if there, Arnold said he was and whereupon “basicallyjust stepped ” out оf the Sanders stated that the way[.] officers went inside home about three feet Sanders also past testified that doorway. *6 for to some methamphetamine
after admitted having Appellant know, here, “Well, use, we’re you he you personal responded, care of You this taken today. Let’s ahead know. just go get had did admit that it me?” Sanders Appellant want to to give no off The State ordered his presented property. previously police the hearing. other evidence during suppression he He stated that testified on his own behalf. then Appellant with these officers in October had come into contact previously unless obtained he them off his 1998 when ordered property, “No stated there were a search warrant. Trespassing” Appellant and in February. both in October signs posted property Sanders, Nor- while was outside with he According Appellant, house, the officers came outside and ris back into the went after had evidence conducting notified him found some the that he was then taken back into a search. stated evidence, or denied over house. He ever turning any voluntarily of meth- ever he was possession any Sanders admitting amphetamine. for defensе at this He
Arnold also testified the hearing. that he had come to house looking day explained never him a ride to work. He stated that he someone give enter home on 8. consent to February gave Arnold, where when asked officers According was, Thereafter, the told them that was busy. simply the door and entered the home. Arnold simply testified that he recalled outside to talk Sanders taking Appellant bedroom, in the him. He heard Sanders ask who was but heard no other conversation. part At the close of the trial court hearing, suppression submit simultaneous briefs on the requested sup- parties The trial sub- issue within ten of the court days pression hearing. 26, 2000, entered an order on denying sequently April trial made motion to In so court the follow- suppress. ruling, ing findings:
1. Officers went to Defendant’s residence interview Defendant drug about reports activity. aby guest.
2. The Defendant’s door answered When askedif the Defendant was back to clear guest stepped present and called for the Defendant. doorway bedroom,
3. The officers observed in the became activity *7 alarmed for their and drew their safety weapons. confronted,
4. The Defendant was it ascertainedthat he did not a threat to the and and Investigator Sanders pose Defendant outside. stepped
5. A discussion ensued which Defendant during acknowl- that he was of controlled substances. edged possession 6. then the Defendant took officers back into his residence and revealed the location of the controlled substances.
I find no for the it suppression of evidence and grounds will be at the of admissible trial this case. A trial held 2000. jury Sanders testi- again June
fied the of about events 8. He that a stated black male February the door at residence and when asked for Appellant’s said, “Yeah, bedroom,” man he’s Appellant, stеpped back from the door. When asked if away the male invited the house, officers into the Sanders stated that he never asked verbally the officers to in. come
Richard also Norris testified that he went to resi- dence both in October 1998 and in 1999. to February According Norris, he heard admit that he had a bottle contain- pill cross, in his bedroom. ing methamphetamine On stated that Sanders bottle and Appellant gave then Sanders it pill turned over him. to also Norris testified about the of manu- components facturing and how are used to make the methamphetamine drug.
The defense rеsted without
evidence. The
presenting any
verdict,
returned a
jury
was sentenced
guilty
as
pre-
stated. This
followed.
viously
appeal
For his first
that it was
point
appeal,
argues
error for the trial
to
court
motion
his
to
deny
suppress.
support
of this argument,
contends that
the officers
no
had
cause or reasonable
their
probable
justify
suspicion
going
home;
residence
had no
to enter
certainly
right
thus,
“fruit of
evidence became
poi-
seized
subsequently
order
that the trial court’s
tree.”1 The
counters
sonous
State
not
motion was
clearly
preponder-
against
dеnying Appellant’s
did
First,
avers
the officers
not
evidence.
the State
ance of the
cause
home for
need
purpose
go Appellant’s
probable
The State
him about
activity.
drug
talking
suspected
however,
in this case
may
that the
acknowledges,
testimony
that the officers
evidence
rise to the level
clear and convincing
valid consent.
entered
home with
on a
a trial
decision
When
court’s
reviewing
makes an
determina
this court
motion
suppress,
independent
views the evi
on the
of the circumstances and
tion based
totality
v.
in a
to the State.
dencе
most favorable
light
Griffin
Ark.
Burris
(2002);
A seizure does not occur
because
officer
simply
police
an
approaches
individual and asks a few
Id. A seizure
questions.
occurs when a reasonable
would not feel
person
“free to leave.”
Chesternut,
v
Michigan
(1988).
U.S. 567
The “free to leave”
however, is
analysis,
not an accurate measure of the coercive
effect of an encounter in situations where a person would have
leave,
no desire to
such as where the
is
person
seated on a bus.
Bostick,
situation,
Florida v.
We further recognized in most Griffin, situations where consent is freely voluntarily given, knock-and-talk *9 has procedure been as a upheld consensual encounter and a valid means to consent Id., to search request 788, a house. 347 Ark. 67 S.W.3d 582 United Cormier, States v. (citing 1103, 220 F.3d 1110- 09 (9th Cir. United 2000); 903, States v. 90 F.3d Taylor, 909 (4th Cir. Kim, United 1996); 947, States v. 27 F.3d 951 Cir. (3d 1994); Tobin, United States v. 1506, 923 F.2d 1511-12 (11th Cir. 1991); Cruz, United States 535, v. 838 F. 543 Supp. (C.D. Utah 1993); Green, State v. 624, 598 So.2d 626 Ct. (La. 1992); State v. App. Land, 131, 106 Or. 1156, 806 P.2d App. 1157-59 (1991)).
Even to these cases prior the “knock аnalyzing talk” however, procedure, this court that an recognized officer
498 furnish to they
could
any person
request
permissibly approach
in
or
the investigation
preven-
or otherwise
information
cooperate
767,
Scott,
Ark.
P.
347
2.2(a);
of a
SeeArk. R. Crim.
tion
crime.
More
this court recognized
499 to their not a resident of the home thus could not consent entry.
The State counters that Arnold
apparent authority
possessed
to the
to consent
officers’
The
how
State
entry.
acknowledges,
ever,
State,
530,
under
Holmes v.
347 Ark.
It is well
settled
a warrandess
a
into
entry
pri
vate residence is
unreasonable under the Fourth
presumptively
Wisconsin,
Amendment. Welshv.
466 U.S.
Stone v.
(1984);
661,
Holmes,
Ark.
530,
call involving David who at to be happened residence. appellant’s residence, at the Upon arriving appellant’s encountered Ellis and the outside the house. The appellant two were men taken to a car for squad One of the questioning. woman, officers then noticed Allen, Rosa Beth in the standing of the home and doorway decided to her about Ellis. question *11 500 could was anywhere they the woman if there
The officer asked and door stepping talk and woman responded by opening house and immediately The then entered the back. officer The officer burned recently marijuana. smelled odor subseT and obtained of his Miranda rights advised the appellant quently vari- The sеarch uncovered search the home. written consent moved to The suppress ous and drugs appellant paraphernalia. evidence, but motion denied. his no that the had justifi-
On appellant argued appeal, home, Allen had consent been by cation for nor given entering Allen’s court In whether for the This agreed. discussing entry. to con- the door and back amounted action of opening stepping sent, relied, 338 decision Norris v. court its part, There, looked to 918 court (1999). 993 S.W.2d Gonzalez, 819, and wrote follows: United States v. 71 F.3d as . closely consent” . . was more The of “implied quеstion Gonzalez, Gonzalez, the in U.S. v. recently supra. examined if an her home and asked officer individual outside approached to a her home. a conver- Following she would consent search of the officer she wanted to go sation with her she told daughter, inside a drink of The officer then told her and water. get her, in” she did bar him from “wanted to with and when go in, her Eleventh held that he followed inside. The Circuit going there was no consent enter: have our to find hesitancy implied
We noted previously in the Amendment (i.e. silence) consent consent Fourth context, Ninth Cir- colleagues and we with our in the agree consent have may cuit that whateverrelevancethe doctrine implied contexts, it is into the entry in other sanction inappropriate home based consent.’ upon [Emphasis added.] inferred Shaibu, then F.2d 1423 Gonzalez from U.S. 920 quoted referred above: (9th 1990), Cir. which it had enter from not show consent to government may to the To do so entry. the defendant’s failure to object by entry. would be consent consent justify entry by States, U.S. at 17. ‘This will not do.’ v. United 333 Johnson show 'une- We must not burden thegovernment shift from —to consent—to whowouldhaveto specific’ defendant, quivocal to a objection or be proveunequivocal specific policeentry, consent. [Emphasis havegivenimplied added.] found Norris, Ark. at at 925-26 Gonzalez, S.W.2d (quoting F.3d 830). at
It is this court’s
reliance on
the
Gonzalez that
State
previous
now takes
with.
the
issue
State
out that the
Specifically,
points
Eleventh Circuit
its
distinguished
Gonzalez in the
holding
Ramirez-Chilel,
recent case of United
States
We find the distinction drawn the Eleventh Circuit by be Here, immaterial to the case at hand. the State failed to clear and that of present any consent, positive testimony any type otherwise, verbal or was obtained before entered Here, house. Sanders’s own Appellant’s how testimony regarding the оfficers came to be in the house varied from the Denno hear to the second ing Sanders hearing. stated suppression initially Arnold the door and the officers entered the opened house. It was not until a later at the year second that Sanders added hearing Arnold door back opened for the to enter. stepped police Moreover, the of Norris testimony contradicts regarding entry Sanders’s When asked if Arnold testimony. indication gave any in, for the officers to come Moreover, Norris “No.” replied, Arnold himself testified at the second suppression hearing door, when he no indication for the gave enter; rather, walked him. Even simply this evi past viewing dence in most favorable to the light we cannot that the say State met its burden on this point.
n warrantless into entry the officers’
Accordingly,
Amendment violation.
constituted a Fourth
home
court, therefore,
motion to
erred in
trial
denying Appellant’s
conclusion,
for us to
it is unnecessary
In
this
reaching
suppress.
of whether Arnold
authority
issue
possessed apparent
consider
Holmes,
See,
the officers’ entry.
to consent to
e.g.,
on this
are
the trial court
Because we
reversing
Reversed and remanded.
Brown, dissents. J., Brown, L. I with dissenting. disagree Just e,e, it
Robert ic ic majority opinion the sole reason that reaches merits the and reverses Latta’s conviction when of appeal has no assistance attorney virtually appellant’s provided Instead, in the has relied on court process. majority appellate The brief and its own research to reverse this case. State’s of based on result of all this is that decision-making principle has the boards. I would system gone by expedite adversary an case and cоunsel to this court with require present appellant’s brief, recent discussion of case appropriate including authority 530, State, v. S.W.3d 860 directly (Holmes point so, I before I reversed this case. If counsel failed to do (2002)), would hold him in of court. contempt this court has taken to task who failed in
Recently,
attorneys
their ethical
their
clients.
those
duty
zealously represent
cases, we ordered
See,
counsel to refile their
briefs.
opening
e.g,
State,
515,
v.Ward
347 Ark.
451 (2002)
S.W.3d
(finding
abstract
deficient
counsel to rebrief the
flagrantly
ordering
State,
matter);
v.
347 Ark.
We have set forth in detail recently obligations appellate counsel, including duty brief prepare legal containing citations to the transcript appropriate authority, setting issues, forth all and the further arguable duty argue case his client. against *14 134, 139, 393, 396, v. 11 Cal. 3d 520 P.2d
People 113 Cal. Lang, 9, 12 (1974) (citations It is Rptr. omitted). elementary appеl- issues, late counsel should file briefs which adequately present and more cite importantly, persuasive controlling authority Scott, for a See v. 64 4th position. Cal. e.g., People App. State, Cal. 2d 315 v. 2d (1998); Smith 496 So. Dist. Rptr. (Fla. addition, Ct. the Model 1986). Rules Professional App. advocate, Conduct state that an as “a asserts lawyer zealously client’s under the rules of the Model position adversary system.” Conduct, A Preamble: Lawyer’s Responsi-
Rules of Professional bilities. an issue which case, decided has not only
In this majority it, on the has also relied but was not sufficiently presented State, course, аdvocates caselaw (the brief for relevant State’s in an its own research then affirmance). majority performed time and relief. We have said favorable effort to give appellant for an not do research or argument that we will develop again 857, 862, State, See, 545 S.W.2d Dixon v. e.g., appellant. to research effect the court is asked “In 609 (1977) (stating, our if the result of in favor of the the law and to hold appellant If we were decline that invitation.”). demands. We must labor so have no need established we would continue on the today, path court, as we would befоre this for attorneys represent appellants Or, in as occurred them ourselves. be essentially representing case, both sides of be the State we would allowing present argument. deficient time has come to remand woefully
I believe the
must
counsel
briefs back to counsel for rebriefing. Appellate
their clients under Sixth Amendment guaran-
effectively represent
(1987).
291 Ark.
Accordingly, appellant’s brief and cite this court to be made to redo his authority opening I him fifteen to do so for each raised. would days point give failed the brief is resubmitted. If he still once appeal expedite of a show cause order in his I would issuance duty, support of court. The alternative not be held in should contempt why with a mere work to continue is to allow slap abysmal appellate occur, We should not allow this the wrist as espe- punishment. has been sentenced to life when the client prison. cially I dissent. respectfully