Lead Opinion
11 Appellant State of Arkansas brings the instant appeal from an order of the Pulaski County Circuit Court granting Appellee Kendrick Robinson’s motion to suppress evidence. In its appeal, the State asserts that the circuit court erred in granting Appellee’s motion to suppress evidence seized in connection with the execution of a search warrant, served simultaneously with an arrest warrant for Appellee, by Sherwood police officers on a home located outside the city limits of Sherwood. We agree and, therefore, reverse and remand.
Appellant was a suspect in an armed robbery of a Phillips 66 gas station in Sherwood that occurred on July 4, 2011. Officers from the Sherwood Police Department executed a search-and-seizure warrant, as well as an arrest warrant, on July 6, 2011, at Appellee’s residence, located at 8405 Edmar Place, North Little Rock, Arkansas.
Appellee was subsequеntly charged with one count each of aggravated robbery, theft of property, and possession of firearms by certain persons. Appellee filed a motion to suppress evidence, arguing that it was taken in violation of his constitutional rights under the Fourth Amendment to the United States Constitution and article 2, section 15 of the Arkansas Constitution. The State responded that suppression was not warranted because the evidence was obtained legally, as the Sherwood officers were authorized to execute the arrest warrant, as well as the search warrant, pursuant to the rules of criminal procedure.
The circuit court held a hearing on the suppression motion on February 23, 2012. At the hearing, Appellee stated that his suppression motion was based solely on his contention that the officers from the Sherwood Police Department were outside their territorial jurisdiction when they executed this search warrant and did so without any interagency agreement. Appellee relied on this court’s decision in State v. Fountain,
Following a hearing on the motion, the circuit court granted the motion, thereby suppressing the evidence seized from Ap-pellee’s residence. The State timely appealed this оrder, but this court dismissed the appeal. The circuit court subsequently entered a written order on October 29, 2012, that reflected its prior oral ruling to grant the motion to suppress. The State now brings the instant interlocutory appeal.
For its first argument on appeal, the State asserts that the circuit court erred in ruling as a matter of law that the evidence seized as a result of an extraterritorial execution of a valid search warrant must be suppressed by concluding that thе execution of the warrant was per se unreasonable because it was not executed in cooperation with local law enforcement. Appellee counters that the circuit court properly suppressed the evidence because it was the result of an invalid execution of the search warrant.
As a threshold matter, we must address whether this is a proper appeal by the State. Unlike the right of a criminal defendant to bring an appeal, the State’s right to appeal is limited to the provisions of Rule 3 of the Arkansas Rules of Appellate Procedure — Criminal (2013). State v. Colvin,
The issue presented in this case is whether the circuit court erred in finding that it was per se unreasonable for officers to execute an extraterritorial search warrant without the cooperation of local law enforcement. More specifically, the State asserts thаt the circuit court erred in its interpretation of the applicable criminal procedural rules and this court’s precedent in Fountain,
On review of a suppression challenge, we conduсt a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and | ^determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. State v. Tyson,
We turn now to the State’s argument that the circuit court erred in granting the suppression motion. In support of this argument, the State asserts that the circuit court erred in interpreting Fountain as establishing a bright-line rule, which requires officers to have interagency cooperation within the jurisdiction of execution of a search warrant. According to the State, it is notable that in Fountain the court considered a combination of statutes, rules of criminal procedure, case law, and facts in applying a totality-of-the-eircum-stances review to conclude that the search was reasonable. The State argues that the circuit court in this instance, while stating thаt it had considered the totality of the circumstances, actually based its decision on one factor, namely, the requirement of interagency cooperation and, thus, erred as a matter of law in granting the motion to suppress. Appellee counters that there is no Arkansas statute, court rule, or appellate court decision that specifically allows a police officer from a municipality to execute a search warrant outside his territorial jurisdiction, acting by himself.
| f,After Appellee filed his motion to suppress evidence, the circuit court held a hearing on the motion. At the conclusion of the hearing, the circuit court announced that it was granting Appellee’s motion, stating as follows:
Based upon the totality of the circumstances, the Court finds that the search in this instance does not comport with the requirements of an interagency agreement so as to respect the concept of territorial jurisdiction of peace officers and the Court finds that the conduct of the law enforcement agency, the Sherwood Police Department in this instance, is not consistent with the traditional notions of reasonableness which underlie the [Fjourth [Ajmendment.
In its written order, the circuit court ruled that in order for the Sherwood police officers to validly execute the search warrant it was necessary for them to either have an interagency agreement оr officers from the other jurisdiction present at the time of the execution of the search warrant. We agree with the State that the circuit court improperly interpreted Fountain as requiring interagency cooperation.
The Fourth Amendment provides that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... The Amendment guarantees the privacy, dignity, and security of persоns against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.
Skinner v. Ry. Labor Executives’ Ass’n,
Clearly the touchstone principle in any Fourth Amendment analysis is reasonableness, and in making a reasonableness determination it is necessary for a court to consider the totality of the circumstances. See Benavidez v. State,
In that case, the appellant brought a cross-appeal, arguing that the circuit court erred in denying his motion to suppress evidence seized from his home in Little Rock by officers from the North Little Rock Police Department because the officers acted outside their jurisdiction. This court affirmed the circuit court’s deniаl of the motion to suppress and specifically rejected the appellant’s argument that, under Colston,
In the present case, the officer had a search warrant. We note that an officer may make an arrest when the officer has a warrant for arrest, as provided by Ark.Code Ann. § 16-81-105 (1987). See also Ark. R.Crim. P. 4.2 (2002). Under Ark. R.Crim. P. 13.3(a), “a search warrant may be executed by any officer.” Id. We noted in Brenk v. State,311 Ark. 579 ,847 S.W.2d 1 (1993) that Ark.Code Ann. § 16-82-201 (1987), which gives any judicial officer in the state the authority to issue a search warrant, does not limit the jurisdiction of the judicial officer to issue search warrants in his or her county. Id.
Fountain,
Looking at the totality of the circumstances in this case, we conclude that the circuit court erred in granting Appel-lee’s motion to suppress because it was not per se unreasonable for the Sherwood officers to execute this search warrant. Pursuant to Arkansas Code Annotated § 16-82-201 (Repl.2005), any judicial officer has the authority to issue a search warrant directed to any person or place in Arkansas. Here, it is undisputed that the search 19warrant was properly issued by a judge in the Sherwood District Court of Pulaski County. Rule 13.3(a) of the Arkansas Rules of Criminal Procedure plainly states that a search warrant mаy be executed by any officer. The officers in this case were the ones investigating the robbery and were the ones who obtained the information used to secure both the search warrant and the arrest warrant. There was no dispute regarding the validity of either warrant, as the dispute related solely to the execution of the search warrant. There was nothing to indicate that the Sherwood police purposefully avoided notifying other law enforcement аgencies. Accordingly, under the totality of the circumstances and in view of the applicable statutory authority, court rules, and our case law, we cannot say that the execution of the search warrant was per se unreasonable such that it warranted suppression of the evidence seized.
Because of our resolution of the State’s first argument, it is not necessary to address its alternative argument that this was a valid search incident to arrest.
Reversed and remanded.
Notes
. Although Appеllee stated that his residence was located in North Little Rock, it was revealed during a hearing on the motion to suppress that the residence is actually located within an unincorporated part of Pulaski County and therefore subject to the jurisdiction of the Pulaski County Sheriff’s Office.
. In his brief to this court, Appellee asserts that this court should affirm the order of suppression, as he is afforded greater protection under article 2, section 15. The State then focuses on this article 2, section 15 argument in its reply brief. We decline to address the specific argument that greater protection is afforded under the Arkansas Constitution because such an argument was not argued to, or ruled upon by, the circuit court. This court has repeatedly stated it will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State,
Dissenting Opinion
dissenting.
While I agree with the majority that we must address whether this is a proper appeal by the State аs a threshold matter, I disagree with the majority’s holding on that issue. Because the issues brought on appeal by the State are not important to the correct and uniform administration of the criminal law, the matters before us do not constitute a proper State appeal. Accordingly, we do not have jurisdiction, and I would dismiss the appeal.
| inThe majority holds that this case presents a proper issue for an appeal by the State because the materiаl facts are undisputed. Thus, the majority states, the question presented is a purely legal one. I disagree. The State presents two points on appeal. The first argument the State makes is not preserved for our review and the second argument is not a proper issue for a State appeal.
We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. State v. Nichols,
The State’s first point on appeal is that the circuit court erred as a matter of law by suppressing evidence discovered following the extra-territorial execution of a valid search warrant. The State makes this argument for the first time on appeal. As the record In demonstrates, the State conceded before the circuit court that a search warrant alone could not be executed without cooperation of local law enforcement. The record reflects the following colloquy:
The CoüRT: Sherwood says, “We don’t have a wаrrantless search. We’ve got a search warrant,” and here’s my problem, and I keep couching it “a problem.” What is the protection offered to a person outside of Sherwood from having Sherwood police officers just roll up onto their property any time they get ready to if they can get a judge to issue a search warrant?
Prosecuting Attorney: Well, Your Hon- or, I would argue that they could not do that without an arrest warrant as well. They can’t go there without an interagency agreement or the cooperation of another agency with a search warrant alone. That’s not my argument, that they can go alone. My argument is with a valid arrest warrant and a search warrant, that they can go and that all of the search is valid based upon that.
It is clear from the colloquy that the State expressly did not make the argument before the circuit court that it now asserts as a basis for this court’s jurisdiction under Rule 3. We do not consider аrguments made for the first time on appeal. See State v. Grisby,
It is apparent that this court allows the State more leeway in the preservation of arguments than it does thе defense. In Riley v. State,
Because we cannot consider the State’s argument on this point, our holding would not establish a precedent that would be important to the correct and uniform administration of justice. Therefore, it is not a proper issue for a State appeal.
For it’s second point on appeal, the State asserts that the circuit court erred as a matter of law by holding that evidence was not admissible under the search-incident-to-arrest exception to the warrant requirement. This also is not a proper issue for a State appeal, for two reasons. First, the holding would not be important to the correct and uniform administration of law. Our law on the matter of a search-incident-to-arrest is well-settled. See Ark. R.Crim. P. 12.5; Gaylor v. State,
The circuit court found that under the totality of the circumstances, the items seized from Robinson’s home were not obtained as a search incident to an arrest. The сircuit court based this finding on testimony that the search warrant was served at 8:36 PM and the arrest warrant was served at 8:45 PM.
This court does not accept State appeals that concern the circuit court’s factual determinations. In Nichols, for example, this court refused jurisdiction over an appeal by the State when the underlying issue was whether exigent circumstances compelled a warrantless entry into the ap-pellees’ home. This court held that jurisdiction was improper under Rule 3 for two reasons. First, the circuit court’s decision to exclude the evidence obtained from the warrantless search necessarily turned on the circuit court’s determination of the credibility of the officer. This court, of course, does not weigh or decide the credibility of witnesses. Second, we noted that the issues surrounding the entry were mixed questions of law and fact and that this court does not accept appeals by the State involving such mixed questions.
Here, the circuit court’s decision turned upon testimony regarding the time that the search warrant was executed and the time that the arrest warrant was executed, as well as whether the search preceded the arrest. As these are questions of fact to which the circuit |14court applied the law, this point on appeal does not involve the correct and uniform administration of the law.
Because the State’s points on appeal do not involve the correct and uniform administration of the law, we do not have jurisdiction over this State appeal. I would dismiss the appeal.
HART, J., joins.
. While in both of these cases this court indicated that jurisdiction was proper under Rule 3, the court did not consider the State’s argument as it was argued for the first time on appeal. Both cases involved a single narrow issue on appeal, which was not preserved for appellate review. However, to the extent that the cases indicate that an issue that was not argued below can be the jurisdictional basis for a State appeal under Rule 3, they are in error and I would overrule them.