State v. MyersState v. Myers
DONALD L. CORBIN, Associate Justice
Pursuant to
Appellee was charged by criminal information filed on August 25, 2011, with felony possession of drug paraphernalia and misdemeanor possession of a controlled substance. The
Appellee moved to suppress the evidence on the basis that the warrantless search of his bedroom was conducted without his consent, without probable cause that a felony was being committed, and without exigent circumstances. Appellee asserted that the search therefore violated his Fourth Amendment rights provided by the United States and Arkansas Constitutions and
The circuit court held a hearing on Appellee’s motion to suppress on March 6, 2012. At the conclusion of the hearing, the circuit court took the motion under advisement. In a letter opinion, the circuit court made the following detailed findings of fact:
The salient facts in this case are as follows:
1. Kendi Halsey was on parole and had executed a Condition of Release Form authorizing a search or seizure of her person, place of residence or motor vehicle at any time, day or night, whether with or without a search warrant, whenever requested to do so by any Department of Community Punishment officer.
2. s. Halsey was living at a residence owned by a Mr. Cranford. Ms. Halsey’s grandfather and uncle lived in the home. The exact ownership of the property was never established at the hearing, but the house belonged to the Cranfords and she was staying there with them.
3. Harold Myers, defendant in this case, was renting a bedroom for $300.00 a month from the Cranfords.
4. A warrantless search of the Cranford residence was conducted on August 13, 2011 with the probation and parole officer and some drug task force
officers. Apparently the younger Cranford answered the door and was told that the officers were there for a compliance check on Kendi Halsey. The officers testified that they did not recall asking Terry Cranford for consent nor did they advise Terry Cranford of his right to refuse consent. Once inside, Detective Foley advised that Terry Cranford knocked on the door of the Defendant’s bedroom and Kendi Halsey and Defendant were asleep in the bedroom. The officers searched Defendant’s room. Detective Foley stated that no one objected to the search. 5. Some syringes, a spoon, rolling papers and pills were found in Defendant’s room on a shelf at the end of the bed. Those apparently were found as a result of the search and were not in plain sight from any other area of the house. Detective Foley testified that when Cranford opened the door Defendant was not asked for consent to search and was not advised of his right to refuse a search. Detective Foley testified that when he investigated another incident involving Kendi Halsey that he had seen her in Defendant’s room. He further testified that he did not ask Defendant if he lived in the room.
6. Steven Becker of the Barling Police Department testified that they did not ask Cranford for consent to search and did not advise anyone of their right to refuse.
7. Harold Myers testified that [he] has lived in the house for seven years and pays $300.00 [a] month rent. He has no felony convictions, is diabetic and uses syringes for injection of insulin. He had heard that Kendi Halsey was on parole but had no contact with any police officer about her.
8. When a knock came on his bedroom door he was told to leave the room and no one asked him for consent nor did they advise him of his right to refuse consent to a search of his room. Kendi Halsey was directed to stay in the bedroom.
9. Defendant testified that Ms. Halsey typically stayed on the couch in the living room but would occasionally share his bed with him.
10. Defendant never signed anything consenting to a search of his quarters. He further stated that he probably would have refused consent if he had known of his right to do so. He testified that the pills and syringe with methamphetamine in it were not his but could have been Ms. Halsey’s. He had not seen her using a syringe.
The circuit court next stated in its letter opinion that the applicable law was
Following entry of the circuit court’s letter order granting the motion to suppress, the State filed a motion for reconsideration, arguing that Appellee’s consent was not required because he elected to share his living space with a probationer who had consented in advance to a search of her residence. The State argued that Appellee had no reasonable expectation of privacy and had assumed the risk that officers would search not only common areas of the home, but also the bedroom that he sometimes shared with the probationer, his girlfriend Halsey. The circuit court did not find the State’s argument persuasive and denied the motion for reconsideration. This appeal by the State followed.
The threshold issue in any State appeal is whether “the correct and uniform administration of the criminal law requires review by th[is] court.”
As this court has consistently observed, there is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. Brewster, 2011 Ark. 530, 385 S.W.3d 844. The former is a matter of right, whereas the latter is not derived from the constitution, nor is it a matter of right, but is granted pursuant to
The State frames the issue in this appeal as a misinterpretation of
Despite the State’s attempt at framing the issue here as one involving solely an error of law, the issue is one of third-party consent, which this court has previously identified as a factual question. See Bruce v. State, 367 Ark. 497, 502, 241 S.W.3d 728, 731 (2006) (stating that the determination of third-party consent, like other factual determinations relating to searches and seizures, must be judged against this objective standard: “[W]ould the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?”) (citing Hillard v. State, 321 Ark. 39, 44, 900 S.W.2d 167, 169 (1995) (quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990))).
In addition to this case presenting a factual question, or at least a mixed question of fact and law, our review of the testimony presented at the hearing reveals that much of the material facts were disputed. Consider, for example, the contested fact of whether Halsey had common authority over Appellee’s bedroom such that her consent would suffice to justify the search as to Appellee. See
With this kind of dispute over the material facts necessary to determine whether Appellee’s consent to search his bedroom was required given Halsey’s consent to search the residence where she lived, it is clear that the circuit court was required to weigh the evidence and to judge the credibility of the witnesses and that this case therefore involves an application of our rules and case law to the unique facts of the case. See State v. Jones, 369 Ark. 195, 252 S.W.3d 119 (2007) (indicating that a circuit court’s credibility assessment does not implicate widespread ramifications on the interpretation of our criminal law). Thus, there is no doubt that the third-party consent and expectation-of-privacy questions at issue here turn on credibility assessments and factual determinations. This case therefore presents questions of mixed law and fact and is thus not a proper State appeal.
In sum, the circuit court’s decision that we are asked to review turns on the unique facts of this case to such an extent that the correct and uniform administration of the law could not be said to be at issue. This appeal is therefore not a proper State appeal according to
Appeal dismissed.
Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellant.
Joel W. Price, for appellee.