Loy v. State
195 S.W.3d 370
Ark. Ct. App.
2004
Check Treatment

*1 91 Here, “off the Cook was from Pifer, supra. readily distinguishable break rest mandated eight-hour overnight and clock” taking the record There in is no suggestion the accident occurred. when in at a.m. 7:30 use the bathroom arising his of upon planned his in different from question any respect morning at he was on the road or whether morning routine preparations, most this are facts of case We thus conclude home. Kinnnebrew, routine and that the of performance supra, analogous tasks in the related arising morning, and upon personal grooming case, circumstances this is not the even under present services of for of compens- performance employment purposes ability.

Affirmed.

Bird JJ., agree. Crabtree,

Earl LOY v. STATE of Arkansas W. 370 CA CR 03-205 195 S.W.3d Arkansas Court Appeals 13, 2004 delivered October Opinion denied November 17, 2004.1] [Rehearing Neal,JJ., Griffen grant rehearing. would *6 Hall, L. for appellant. Kathy Beebe, Gen., Gen., Ass’t for

Mike Brent P. Att’y by: Gasper, Att’y appellee. F. was Chief Earl Judge. Appellant, Loy, Stroud,

John convicted trial of of in a bench possession drug paraphernalia to He was to with intent manufacture sentenced methamphetamine. Correction, with months the Arkansas Department sixty ninety was for On $160 and he assessed court costs. months suspended, he trial court when it his that the erred denied argues (1) appeal, to in what he characterized as an motion evidence suppress illegal and that there was sufficient evidence to (2) finding support We affirm conviction. his conviction. appellant’s the of October Officers Samuel On evening and Mark of the Hot Police Willis Springs Department Spenser Hot to two went to 109 Boaz in serve attempt Springs U.S. arrest warrants on A Park Ranger misdemeanor appellant. the that he to that had advised officers had followed appellant residence, Officer testified he address. Spenser approached home, on the inside area. a mobile and knocked door carport door, a inside the door he knocked on the male voice just When asked, it?” himself “Who is When identified as Spenser police, minute,” him a voice inside told heard “just Spenser inside toward back of trailer. running

footsteps Spenser abscond, advised Willis that he was thought appellant going Willis went back the trailer. knocked and when he told

Spenser again, “just time, he minute” a second told the inside that if he did not person *7 out, time, come he would the out. At that bring police dog whom from a appellant, the Spenser recognized photo, opened door, around, told looked the officer a minute” and “just again, inside, closed door. the heard more knocked Spenser footsteps and answered door again, the appellant again. door, said when that the smell

Spenser a hit appellant opened burn, him his and nose immediately, to and his and eyes began lips to numb. He a the tongue saw trash on floor began go large bag the right inside door with a lot of matches out of it and pouring floor, some on the and he said the gloves lying air-conditioner was full even blast it blowing was cold outside and the though windows were testified that he open. turned to Willis and Spenser said, “meth,” to which “You a replied, appellant got warrant? You need a search for warrant that.” was, asked he who and

Spenser told them appellant appellant Steve; however, that his name was both officers recognized the warrants, as for appellant whom had the arrest person they and took him into they said that when custody. Spenser removed they he also a appellant, saw on the coffee syringe lying table. The officers saw a female at a table the door who sitting was by identified as and told she them that Nancy Lyon, there was a female in the back. Willis did a of the residence at that sweep time. cross-examination,

On said that there awas door Spenser frame to the but that he went carport, inside that area and knocked on the trailer door. He said that the door the on of outside the not a secure door. carport

Officer Willis’s corroborated that of Officer testimony the Spenser how officers the regarding door and approached what did as were to appellant him to the they attempting get door. open After into Willis appellant said that he taking custody, noticed the female door, at the kitchen table the sitting to the and he right saw the of matches with the striker large bag a plates missing, table, on the coffee a syringe large bag, front of the gloves Due to bag. female’s that she someone response else thought residence, inwas Willis walked the trailer and found through man, Ecker, bathroom, a man, Dana and another Michael bedroom, those individuals Howell, and he took in the asleep that he outside, any Willis denied opened with Nancy Lyon. along or drawers. cabinets force, Norris, task drug an on investigator

Richard and Willis at the residence after that he arrived Spenser testified He noticed out of residence. strong taken several had people he a of the odors he that were culmination when arrived odors He also saw on front with meth labs. sitting porch associated dark and a a red and a sediment jar liquid large glass containing that had a filter on gray bucket cloth top containing crystals saw to him be iodine He also the books crystals. appeared inside the front door. matches sure that there were no

Norris entered the residence make ventilate the residence items that could cause an and to explosion Norris off the condi- more windows. also turned air by opening chemicals; sure were made made that there no tioning; open fires, flames, heaters sure that there were no open open open bedroom, he saw what When he walked back burning. *8 a under to be from gas generator appeared the hydrogen protruding He a bed that was off an acid also found still vapor. putting bed, Paula After under the later identified as female hiding George. secured, the residence was and Norris removing George, applied warrant, for it for a search which was The basis nighttime granted. was, a warrant “The Affiant states being [Norris] as to a that the residence cannot be secured so not properly pose enter. Affiant to the who The anyone danger community might the that circumstances exist to warrant believes exigent conducting executed, hours.” The warrant was and search during nighttime numerous items related to the manufacture of methamphetamine residence, the were found inside and outside as well as in the of the residence. garbage Ecker, found resi- Dana the man in the bathroom of the

dence, residence, testified that he knew lived at the but appellant landlord, not know was still Floyd, he did if Terry appellant’s at the He said he there time of arrest. that when living went to the residence that appellant’s he on did not knock the

night, carport door, the He said he was but instead knocked on trailer door. that in, he when and Paula came but that did not notice there Michael in their He said he was that drinking hands. that night, anything trailer, he did he did not unusual in the and but that smell anything that not see he anyone doing anything thought illegal.

100 testified residence that the had been Jacqueline Reynolds mother’s, died, brother, her but that she after her Floyd, Terry However, lived there. she said had moved out in the Floyd of-2001, summer and that was allowed to live there appellant because he was on some cars. She described the as working carport a and said had that it not been screened in for over breezeway trailer, She said when she the she year. would approached go trailer, outside, to the door on metal the not the one because you could not on knock that one.

Carla testified that at Veazey lived her appellant deceased house and that she had grandmother’s been there several days prior to arrest him and found meth. She said that appellant’s cooking to if she did the appellant not call promised quit and she police, agreed. rested, The State rested without appellant any calling

witnesses. made his for his motion to Appellant arguments suppress and his motion for directed verdict. The trial court took the issues under advisement and later issued a letter ruling denying appel- lant’s motion him suppress finding now guilty. Appellant this brings appeal. contends that the

Appellant trial erred judge his motion for denying directed verdict. A directed-verdict mo tion State, is a to the of the challenge sufficiency evidence. Fieldsv. 76 S.W.3d 868 (2002). Although appellant’s argu ment of the regarding sufficiency evidence his support conviction is his second point appeal, his preservation right double against that the jeopardy court requires consider appellate of the sufficiency evidence before challenge trial alleged considered, error is even the issue was not though as the presented first issue on Davis v. appeal. Ark. S.W.3d 872 (2002). When of the evidence is we sufficiency challenged, verdict, consider only evidence that supports viewing *9 the evidence in most favorable to the light State, State. Harris v. 72 227, Ark. 35 S.W.3d 819 The is App. (2000). test whether there is verdict, substantial evidence to the is which evidence support that is of will, sufficient force and character that it with reasonable a conclusion one or certainty, compel another. Id. way Resolution of conflicts in and assessment of testimony witness is for credibility the fact-finder. Id. contends that there was no evidence at Appellant presented

trial that connected him the with found in drug the paraphernalia

101 exercised that he residence, failed to therefore the State prove and or that he control, the contraband care, over and management there was no He that in fact contraband. that it was argues knew seized, that he was the items he that any testimony purchased seized, his hands were items that or of the seen stained, using any holding of metham- under the influence that he to be or appeared Norris, to the fact that Investigator He further points phetamine. when asked what to the items in the evidence connected appellant there, that there was that he lived home other than the fact replied nothing. not

In order to it is necessary possession, prove State, v. of contraband. SeeDodson literal physical possession prove 41, is deemed to be (2000). Ark. 14 S.W.3d 489 Contraband 341 the contraband was if the location of constructively possessed State, Fultz v. the dominion and control of the accused. See under 586, Ark. S.W.2d 222 constructive (1998). 972 Although when contraband is in the control be joint possessionmay implied of the accused and another standing person, joint occupancy, alone, not sufficient to establish is possession joint possession. Ark. 87 S.W.3d 822 The (2002). Abshure App. the accused exercised (1) State is also to establish required contraband, care, control, and over the and the (2) management Id. accused knew the matter was contraband. possessed case, In the liv present appellant unquestionably landlord, the in the residence at 109 Boaz. Although Terry ing had also lived in the trailer with the evidence appellant, Floyd, been at the residence for several indicated had not Floyd living arrived weeks before was arrested. When the officers at appellant the residence on the of October was the night appellant person the door. who answered When finally repeatedly appellant opened door, odor, his Officer smelled a chemical eyes Spenser strong burn, nose and his and started to and lips tongue go began numb. Items associated with the manufacture of methamphet residence, the resi amine were found outside throughout residence, dence, and there were outside garbage in different rooms of the various of manufacturing occurring stages Furthermore, acted in a manner residence. suspicious appellant knock, the officer’s door when opening closing answering that all of this times and around We hold several looking furtively. the trial court that evidence finding by appellant supports *10 with the intent possessed drug to manufacture meth- paraphernalia and we affirm on this amphetamine, point. also contends that the trial court

Appellant erred in his motion to denying evidence found in the house suppress brief, where he was In his first residing. that he appellant argues had to contest the search. We standing hold that this is a moot because the trial court determined point that had stand appellant to contest the search. ing also Additionally, appellant (1) argues that Officers and Willis did not have Spenser cause to probable enter his warrant; home absent a valid search that no (2) exigent circumstances existed that would Officers permit or Willis Spenser or Norris to enter Investigator warrant; the house without a that the (3) search did not with Rule 13.2 comply of the Arkansas Rules of Criminal Procedure.

In the denial of a reviewing motion to suppress, court conducts a de novo appellate review based on the totality circumstances, of historical reviewing facts for clear findings error and whether those determining facts rise to give reasonable cause, suspicion probable due giving weight inferences State, drawn the trial court. by 406, Davis v. 351 Ark. 94 S.W.3d 892 (2003). first

Appellant argues Officers and Willis im- Spenser crossed the properly threshold of what the officers described as a to serve the valid carport arrest warrants because that was of his part residence and he had an expectation privacy area. Appellant make much of attempts the facts that there was an door, outside that there were corners, at the posts and that there on one plywood However, end of that area. at testimony trial was that the locked, door could not be that there was no area, longer around the screening and that could walk you be- tween the Furthermore, wooden posts. both Dana Ecker and door, testified Jacqueline Reynolds that the trailer not the door on the outside of what the officers described as the was the carport, door that was approached knocked when upon desiring entry into the trailer. However, as out, the State our points supreme court, 374, Benevidezv. 379, 101 S.W.3d 246 (2003) York, New (citingPayton 445 U.S. 603 (1980)), held, “For Fourth Amendment an arrest purposes, warrant founded on cause probable carries with implicitly it the limited *11 lives when there enter a in which the dwelling suspect authority our is within.” is reason to believe Although supreme suspect is arrest warrant held that a misdemeanor court has not explicitly home, the Circuit entrance into a sufficient for an officer’s Eighth 841, 843 States v. 210 F.3d in United Court Clayton, Appeals, is to both has held that this 2000), applicable Cir. (8th principle Furthermore, Benevidez arrest warrants. and misdemeanor felony if a valid officers to enter a have they allows dwelling explicitly in the to believe that the lives arrest warrant and reason suspect it. makes no that and is within argument dwelling Appellant valid, and the officers testified that arrest warrants were not they inside the residence had received information that was appellant from a U.S. Park who had followed Ranger appellant door residence. We hold that the officers’ to the front approach the trailer was proper. also contends that Officers and Spenser

Appellant Norris, Willis, and later had no cause to Investigator probable warrant, enter the without a search and that no residence exigent that have them to enter the circumstances existed would allowed residence without a warrant. Rule 14.3 of the Arkansas Rules of Criminal Procedure provides:

An who officer has reasonable cause to believe that or a premises vehicle contain: harm; individualsin imminent of death serious

(a) danger or bodily or bum,

(b) things imminently or otherwise cause likely explode, death, harm, serious or substantial bodily destruction of proper- ty;

(c) to seizure which will cause or be used to cause things subject death or serious harm if their seizureis bodily delayed; warrant, without a search enter and search such may, premises vehicles, therein, and the to the extent persons reasonablynecessary death, harm, for the of such or destruction. prevention bodily Under this a warrantless into a residence emergency exception, entry be if the State that the officer had reasonable cause may upheld proves to believe that someone inside was in imminent of death or danger serious harm. 952 S.W.2d 646 bodily Wofford (1997). We hold that the initial of Officers entry Spenser was Willis under subsection of Rule 14.3 of the justified (a) Arkansas Rules of Criminal Procedure. Based what the upon door, officers saw and smelled when appellant opened they believed manufactured, which, methamphetamine being labs, based their of meth upon would a threat of knowledge pose immediate serious harm to in the residence. The bodily anyone officersalso had reason to believe that there were other persons the residence based upon heard when footsteps they they first arrived and the fact that there was a female at the table sitting who said that she there awas female in the thought back of the house. We hold that this was of the circumstances. proper light *12 Norris,

With to under regard subsec Investigator tion of Arkansas (b) 14.3, Rule of Criminal Procedure into a entry residence is allowed where there is reasonable cause to believe that there burn, are to things or imminently likely otherwise explode, death, harm, cause serious or substantial bodily destruction of out, As the State property. Norris was a member points of the drug task force and was an labs, the field of clandestine meth expert and he entered the residence to further secure the scene and ensure that there was no flame that could burning cause an In explosion. Walsh, United States v. 299 F.3d 729 (8th Cir. 2002), second search someone who had by in meth special labs training when that search was for heat upheld sources that could ignite. held, The Circuit “The Eighth hazards of potential methamphet amine documented, manufacture are well and numerous cases have limited warrantless upheld searches officers who by police had cause to believe probable had uncovered they an on-going methamphetamine Id. at manufacturing 734. We operation.” hold that Walshis Here, instructive in the case. there present was not odor, an but the officers had only seen evidence of meth produc tion, and Norris was Investigator as a member of better-equipped the task force to insure that all drug sources of possible danger associatedwith the meth lab were contained. We find no error on this point. last is that the Appellant’s point warrant did nighttime

not with Rule 13.2 comply of the Arkansas Rules of Criminal Procedure. We must first note that based the trial upon judge’s abstract, contained in the ruling which is the record on it appeal, did not that the trial appear ruled on the issue of judge the specific State, search. 26, In Romesv. nighttime 356 Ark. 144 S.W.3d 750

105 issues were the court held that when (2004), supreme multiple court would not reach raised in a motion to suppress, appellate the trial court. the merits of not ruled any argument upon by record, However, which this court can do reviewing upon 249, affirm, State, see Ark. 956 S.W.2d 870 Turner App. we discovered that after the trial issued his initial (1997), judge letter defender wrote back ruling, public inquiring specifically search, about the and the trial then ruled nighttime judge upon that issue in an additional letter motion ruling denying appellant’s on that basis as well. suppress

A factual basis for a search is nighttime required. State, Stivers v. 76 Ark. 61 S.W.3d 204 A (2001). App. search warrant be under nighttime may only granted specific access; circumstances: the to be searched is difficult of place speedy removal; to be seized are in imminent of objects danger warrant can be or executed at only safely successfully nighttime under circumstances the occurrence of which is difficult to predict with Ark. R. Crim. P. We hold that none 13.2(c). accuracy. these are here. The trailer was not difficult to exceptions present access; secured, with arrested house there was no appellant removal; imminent and there were no danger circumstances the warrant to be executed at requiring night.

However, in Crain v. App. S.W.3d 406 this (2002), court held that there was no although search, for a the search was justification permissible *13 under the rule. SeeUnited good-faith exception exclusionary Leon, Statesv. 468 U.S. 897 this is not (1984). Although exception absolute, in that case it was because there was no evidence applied that the sheriff made material false statements misrepresentations affidavit; in his there was no evidence that the judge issuing role; warrant abandoned his neutral affidavit contained more than In conclusory boilerplate language. determining whether the is this court must good-faith exception applicable, decide whether it “was reasonable for a ‘well-trained objectively officer’ to conclude that the search was police nighttime supported Crain, cause.” at by 79 S.W.3d at 410. probable App. Crain, court, Martin, In this United States v. 833 F.2d 752 quoting Cir. held: (8th 1987), a

Although officer not on the police may rely entirely magistrate’s cause, where, here, in cases as finding probable courtscannot sufficient, on whether the affidavit is it would be unfair to agree faith, characterize conduct of the officers as bad executing where there has been no material false statements or particularly in the where the affidavitand officer is misrepresentations acting faith. When can look at the same affidavitand come to good judges conclusions, a officer’s reliance on differing that affidavit police must, therefore, be reasonable. Crain, Ark. at 79 S.W.3d at 410. App. Crain, In accordance with we must look to the of the totality

circumstances, affiant, Norris, what the including Investigator knew but did not include in his affidavit.The affidavitincluded the information in of Norris’s for a following support request night- time search: there was a chemical odor from the strong emanating residence; table; there was a on the coffee there was syringe lying a of book matches with the striker removed inside bag plates just door; the front there awas on the front glassjar porch containing sediment; a red with a there was a bucket on the front liquid gray with a filter on porch contained iodine top suspected crystals; table, and Norris observed an acetone bottle under the kitchen as table, matches, well as the on the coffee the book syringe and some coffee filters. In addition to the information contained in the affidavit, there was also evidence of evasive behavior by appellant when the officers first arrived at the residence to serve the arrest warrants; the air conditioner was on even it was cold though outside and the windows were and Norris found a open; hydrogen chloride from under gas a bed that was still generator protruding off an acid putting vapor. Crain,

As in in the case there was no evidence present Norris made material Investigator false statements or any affidavit; in his there was no misrepresentations evidence that the officer who the search judicial warrant abandoned his signed role; detached and neutral and the affidavit evidence provided which could create as to the disagreement existence among judges cause. we probable hold that a lack of Although to manpower secure the residence overnight prevent who danger anyone warrant, entered is not a sound basis for a nevertheless, we hold that the to the exclu good-faith exception rule Crain, is in the sionary casebecause asin applicable present we reasonable, believe that a officer well-trained could have believed *14 that a search was under the nighttime facts of this case. justified

Affirmed. JJ., agree. Gladwin, Crabtree, Bird, dissent. JJ., Neal, Griffen I, like the

Wendell L. major Judge, dissenting. Griffin, in this case that there were no circumstances ity, agree However, a I Neal’s that search. justified join Judge nighttime I with the because wholeheartedly major dissenting opinion disagree view that the search in this under the case was ity permissible rule set in to forth UnitedStates good-faith exception exclusionary Leon, 468 U.S. 897 (1984). Norris, The which Richard is testimony by Investigator cited in Neal’s demonstrates Judge dissenting opinion, knew had no for a police they justification conducting nighttime search. Norris testified that “to tosit someoneovertime overthere’til pay the next wouldhavebeena burdenthat we wecouldn’tdoat day just—that that time.”

In the face of that and absent testimony, any authority citing administrative convenience as a basis for a search under allowing declares that: good-faith exception, majority opinion we hold that a lack

Although to secure the residence manpower to overnight who entered is not a sound prevent danger anyone warrant, nevertheless, basis for a we hold nighttime that the good-faith rule is in the exception exclusionary applicable Crain, reasonable, case because as in present we believe that a well-trained officer could have believed that a search was nighttime justified under the facts of this case. The relies our court’s decision in majority Crain v. upon 79 S.W.3d 406 in App. (2002), affirming court, trial but this case is a far from even what was cry upheld case, In Crain. there was at least information above pre-search

what we held was the “bare-bones” or of the boilerplate language affidavit with submitted for the search warrant. application This case contains no similar As I wrote in proof. my dissenting Crain, “our opinion courts have resisted the supra, temptation lower the threshold for searches. This decision flies in the face of that reluctance.” Id. at 79 S.W.3d at 413. The rationale mocks the fundamental majority’s purpose

the Fourth Amendment and would leave the constitutional guar- antee of freedom from unreasonable intrusions governmental

108 conve such factors as administrative entirely dependent upon when it nience and the of law enforcement agencies, budget the search. Our turn on facts related to challenged should objective courts, in the United Court federal States Supreme particular, the Amendment does not exist for that the Fourth recognize U.S., the See McDonald v. 335 U.S. convenience of government. on Fourth Amendment 451 conviction (1948) grounds (reversing reason, the inconvenience of the officers and where no except ex before a delay getting magistrate, preparing papers SeealsoUnited warrant). the officer’s failure to seek a search plained F.2d 218 Cir. that an (9th 1991) States v. 934 (noting Taylor, in balanc individual’s interest outranks convenience government Fourth Amendment interests). ing

Further, of the Fourth right privacy guaranteed by civilization, Amendment is one of the fundamental values of our which means that it can neither be treated nor trod lightly upon. State, 112, 117, It Guzman v. 283 Ark. 672 S.W.2d 656 (1984). follows, then, that the Fourth protections guaranteed by Amendment cannot be made to stan depend upon changing dards of administrative convenience or fiscal of law solvency The that it enforcement with decision is today’s agencies. danger license for law enforcement officers to appears give judicial conduct a search based on an after-the-fact assertion that for “would have been a burden.” The idea waiting runs counter to the notion of the Fourth Amendment daylight very as

guarantee a “fundamental” guarantee.

Whatever else the good-faith exception exclusionary do, rule I was intended to the idea that it categorically reject searches for reasons of administrative conve- justifies nighttime nience. has used the By affirming, majority good-faith excep- tion to excuse conduct the Fourth Amend- plainly prohibited by ment. the civil in the Bill for liberties enshrined My respect me to dissent from this decision and Rights compels respectfully Crain, the mischief that it will cause. decision in went Our supra, far; I too am to extend it. certainly unwilling I am authorized to state that in this dissent. Judge NEALjoins I dissent from Judge, dissenting. respectfully Neal,

the decision the denial of motion to affirming appellant’s because I do not believe that the good-faith suppress exception an We use an standard when whether applied. objective evaluating officer acted faith. See good App. Carpenter 821 S.W.2d 51 It (1991). has been said that “the a man right retreat into his own home and there be free from unreasonable intrusion stands at governmental core of the Fourth Amend very Ramirez, 551, 124 ment.” Grohv. 540 U.S. S. Ct. 1290 (2004) States, Furthermore, v. United (quoting U.S. 27 it is Kyllo (2001)). of the courts to be watchful for the duty constitutional of the rights *16 citizen and against encroachment thereon. any stealthy United Boyd States, 116 U.S. 635 (1886).

When asked he did not wait to execute the why warrant between the hours of six a.m. and eight p.m., Investigator Norris replied: time, From the that we way were at that it wouldn’t operating have —

been possible to either a officer or to police someone pay overtime to sit over there ’til the next would day have been a — burden that we that we just couldn’t do at that time. And without residence, actually having there at the somebody sitting know, I can’t you [guarantee] from security that comes anybody up there, to want residence, get to break in the or anything [sic] like that. The police lack of man department’s is not one of the power enumerated reasons that search. If I justify were to agree that the faith, officersacted in I would be good disregarding my duty to safe guard against encroachment on the constitutional rights our citizens. I am authorized to state that Griffen in this Judge joins dissent.