*1 cautiously when whether to deciding recognize This Court treads meet new the law adjust society’s changing a tort. While must needs, balance that boundless claims adjustment against we must are averse to crowded We judicial system. especially already tort that would lead to creating duplicative litigation, better relitigation inefficient of issues handled within encouraging core We cause of action. thus decline context tort. . . evidence as an . recognize spoliation independent [The] to the of evidence properly problem spoliation traditional response as an not cause wrong evidentiary the alleged concept, separate frames action. added). 951-52 (emphasis Trevino Ortega, unwise to first- Because we find unnecessary recognize Arkansas, as an tort in we of evidence spoliation independent party affirm decision of court. E. STEPHENS v. STATE of Arkansas
Mack CR S.W.3d 260 98-1073 Court of Arkansas delivered September Opinion *3 Bowden, Firm, for BowdenLaw David O. by: appellant. Gen., Gen., Newman, for Brad Ass’tAtt’y Mark Att’y by: Pryor, appellee. Mack was convicted of Justice. Tom Glaze, a controlled substance (methamphetamine)
possession he intent deliver and was possession drug paraphernalia; $10,000. and fined On sentenced twenty-three years prison denied his motion he court argues improperly appeal, evidence from his and car after his arrest. seized person Lance the Van Burén On Freeman of July Deputy was with the owners of the Sheriff’s County visiting Department store, he he Foothills in Airead. As was inside saw a Grocery lot, tan to enter the but the car then Oldsmobile parking begin for a second and sped away. recognized paused knew Rudder to be (whom passenger, Terry policeman he did A minute involved but not know the driver. or so drugs), later, store, the car returned to the and the driver was alone. Because this struck Freeman as he asked the suspicious, was; store owner if he knew who the driver the owner responded that it Mack Stephens.' *4 Freeman then called the Sheriff’s and asked the Office
Deputy name file) name Mack in QNF dispatcher (query Stephens the Arkansas Crime Information The (ACIC). search Computer came back that there was a warrant out for a Mack showing out of Faulkner on a hot check County Stephens charge. license, went outside and asked for his driver’s deputy Stephens which showed the name Mack Freeman told Stephens. Stephens him, that there was a warrant out for and he under placed Stephens arrest.
Freeman then turn had out his as of a Stephens pockets, part search incident arrest. set out a red Stephens zipper pouch that contained a number of small of white a vial baggies powder, with white a vial and device with white powder, glass measuring blades, straws, two two a a small razor three powder, pipe, spoon, screens, $2,229.35 and Crown in filtering Royal bag containing cash. A the car turned search of also a list up Dial-a-Page beeper, names, and a list of numbers. telephone
After with with intent to deliver being charged possession and possession methamphetamine drug paraphernalia, Stephens moved to the evidence found this search. He during contended that his arrest was but trial dis- “pretextual,” judge and ruled that Freeman had reason believe Mack agreed Stephens had a warrant out for his arrest it was later learned that (although son, the warrant was for whose name was also Mack Stephens’s motive, and that there was no evidence of Stephens), any improper faith, bad or on the officer’s in pretext part approaching asking for identification or in under arrest based on the placing Stephens warrant.
A found and he now jury Stephens guilty drug charges, two appeals, 1) his arrest was not based raising following points: cause, reasonable or but was instead upon suspicion probable pre- Rudder, mised on the fact that he had been seen with a person known to have a of involvement with history 2) drugs; court erred in the list of names and numbers allowing telephone seized from his car to be entered into evidence. findWe no merit to either of these contentions and affirm. first asserts that could not Freeman artic
ulate a reasonable
or
cause to
him to
suspicion
probable
permit
files,
such,
access the ACIC
and as
the information from the ACIC
search should have been deemed
obtained and therefore
illegally
However, this was not his
below.
suppressed.
to the trial court that the evidence
argued
should have been sup
There,
because the arrest was
he contended that
pressed
pretextual.
the QNF because of a
only requested
suspicion
However,
based on
association
Rudder.
he never
or
below
the officer acted
suggested
argued
improperly
about and
on the arrest warrant.1
learning
We
acting
long
held that issues must be
trial court
order to
presented
1 In his
first makes mention that the
was stale
warrant
or
reply, Stephens
perhaps
*5
convincing argument
outside the statute of limitation.
still
no
However,
offers
concerning
or citation of
the warrant’s
and we have said on numerous
authority
invalidity,
arguments
convincing
occasions that we
not
do
consider
unless
by
authority,
unsupported
is
further
v. State,
without
research that
are well taken. See McGhee
334 Ark.
apparent
they
543,
preserve
appeal. Rogers
State,
402,
Stricklandv.
(1999)
331 Ark.
(citing
S.W.2d 769
will
(1998)). We
not address an
that was not made
to the
State,
trial court as
a motion
Rhoadesv.
part
suppress.
Ark.
45, 49-50,
inadmissible because Freeman had no information except Stephens’s
association with Rudder as a basis for the arrest. He relies on
State,
138,
Stewartv.
157 event; taken is no thus there reason to the any Fourth place bring Here, and the doctrine Amendment into Id. exclusionary play. had an arrest warrant “Mack naming and because he had under R. Ark. Crim. P. Stephens,” authority 2.2.2 to and arrest said cannot be that the approach Stephens,3 arrest was pretextual.
For second on that his the list point of appeal, Stephens argues names and numbers seized to his arrest were not telephone pursuant him in He to contends that this his provided discovery. prejudiced on his defense was that he the ability (which put possessed large amount of for and not personal with methamphetamine possession the intent to distribute the it) because names on the list were “not enforcement,” unknown to law and the was that the list implication was a “customer list.” that court should urges Stephens his sustained or his mistrial motion for when objection granted the State introduced these lists.
The list was removed from question Stephens’s possession and introduced without at the on the motion objection hearing trial, which held five months before the trial. At suppress, admitted, seized, list was the other with items again along without did not objection. Stephens’s to the introduction of attorney object the list in until the any way to ask Free- began prosecutor man if he knew on the names fist. any Although Stephens states in brief his that he made a motion for mistrial “for instruction,” neither the nor the that abstract reflects such transcript a motion was made. law
The is clear that either objections introduc any tion of evidence or to must be made discovery violations purported at the first Hinkston opportunity.
S.W.3d
first
in this case was at the
opportunity
another
at
arose
trial when the
suppression hearing;
opportunity
introduced the
fist
the other items seized.
prosecution
along
2 This rule
law enforcement officer
provides
“[a]
may
any person
request
investigation
furnish
or otherwise
information
in the
... of crime.”
cooperate
did
of
challenged
not attack the
even if he had
warrant, but
validity
“executing
it, the United
Court has indicated that a law
officer
States
enforcement
an arrest
is
investigate
warrant
the Constitution to
[not] required by
independently every
innocence,
claim
whether the claim
such
is based mistaken
or a defense
as lack
identity
(1979)
intent.” Baker v.
U.S.
McCollan,
145-56
requisite
however, did not
to the evidence until Deputy
Stephens,
object
Freeman’s
on redirect examination.
testimony
event,
had
list at
known of the
least for
months
He
least
five
had
hearing.
following
suppression
*7
motion,
a
asked for
evidence in
he does
documentary
discovery
not claim
he was denied
to the list. The
cannot
that
access
State
be
evidence,
held
the
for
failure to
responsible
investigate
nor was
entitled
on
as a
to
alone
substitute
rely
discovery
State,
for
v.
See
334 Ark.
thorough investigation.
Rychtarik
addition,
Finally, Stephens reply argument that this court has standard review in urging applied improper cases motions to For he involving this cites suppress.4 proposition, States, Ornelas v. United 517 690 held that U.S. which “as a (1996), matter determinations of reasonable general probable suspicion Ornelas, cause be reviewed should de novo on 517 U.S. at appeal.” 699. The Court further stated “a court should take reviewing care both to review of historical fact for clear error findings and to due to inferences give weight drawn from those facts by resident and local law enforcement officers.” Id. judges
Our court has reviewed trial denials of historically courts’ motions to erroneous” standard. Our most suppress using “clearly recent of this standard came pronouncement down this June, past Gilbert v. where we (2000), standard the as expressed follows:
When this court a trial on a reviews court’s motion to ruling we review the evidence in the the suppress, most favorableto light State and make an determination upon based independent of the totality circumstances. Bangs the basis of this This appeal perceived was conflict between originally filed in the Ornelas Court of and our Appeals, standard of review. but was certified to us on Further,
S.W.2d 738 this court will only reverse trial court’s on a motion if the ruling ruling clearly erroneous. Id.
Gilbert,
However, while an inter Stephens’s argument brings up we decline to legal address it this time for a esting question, First, number reasons. is not raised. Ste timely brief; result, did not broach until his as a phens subject reply State was no this given opportunity respond argument. we are not convinced that entirely our standard
Secondly, of review is at with the odds one enunciated by Court. This court first formulated its standard of review in search-and- Osborn, seizure cases in State S.W.2d (1978):
We
never
stated our standard for
appellate review
*8
trial court action
or
to
granting
denying motions
evidence
suppress
obtained means of a warrantless
by
search.
the substan
Although
tial evidence rule has been followed
this court in
by
nearly every
instance of review of
fact
finding
circuit
by
judge, even
evidence,
questions
to
of
there
pertaining
admissibility
has been at
State,
least one
since our
in
outstanding exception
decision Harris v.
314,
293,
941,
244 Ark.
425 S.W.2d
cert. den. 393 U.S.
S.Ct.
308,
based totality the will upon but not set aside trial judge’s finding voluntariness unless it is the clearly against of the evidence. In this preponderance we have approach, given weight considerable the of the trial in the resolu- findings judge tion of conflicts. Harris v. evidentiary We must defer to supra. of the trial superior judge position pass upon credibility of witnesses. Whitmore v.
Osborn,
Ark.
Without additional and citation of authority, we are unable to our standard inis conflict with that set say out in Ornelas. The Court directed courts to examine reviewing the factual of trial courts for clear error” and findings “only give “due to inferences drawn from weight those facts resident by standard, Osborn, our set as forth judges”; us to do the requires same. we us, note that in
Finally, the record before reviewing the outcome would be the same under the Ornelas standard or the short, one our court has who heard adopted. judge motion to made an Stephens’s factual appropriate finding that there was no involved in arrest. pretext Based on Stephens’s reached the finding, correct conclusion judge legal deny words, motion to In other Stephens’s whether we suppress. applied our based “independent determination on the of the cir totality cumstances” and erroneous” standard “clearly of review or novo, examined the record de a clear error review of historical giving Ornelas, facts as described in we conclude that the trial court made ' decision. right Freeman arrested Simply put, Deputy warrant, based on an arrest and he then conducted a lawful search incident to arrest. We hold the trial court’s ruling allow evidence from the search of gained and his car was correct. reasons,
For the we affirm foregoing convictions. *9 Smith, Brown and concur. JJ., Brown,
Robert L. I Justice, with the concurring. agree but write majority opinion on one expand The point. majority cites opinion correctly Mings 201, 884 S.W.2d 596 (1994), for the following proposition:
An ulterior motive does not in itself render an arrest pretextual
when there is a valid overt reason to make the arrest. Id. (citing
Hines v.
68 (1986)). The
is that the arrest for
reasoning
the overt violation would have taken
event;
thus there is
reason to
no
Fourth
place
bring
and the
Amendment
doctrine-into
Id.
exclusionary
play.
however,
and
forward
that an
opinion,
goes
Mings
emphasizes
reasonable-officer
standard is
objective,
applied
determining
whether
the arrest is valid
relies on
R. LaFave’s distin
Wayne
LaFave,
treatise as
See 1
R.
Search
guished
authority.
Wayne
1.4,
Thus,
Seizure
failure
meet
(Supp. 1994).
§
and reasonableness standard set out in
objective
can under
Mings
mine
an arrest. We
validity
recently upheld
reasonableness
Sullivan,
standard for
arrests in State v.
pretextual
318-A,
S.W.3d
denied
(2000),
David Carroll GOODWIN STATE of Arkansas CR 99-11 Court of Arkansas delivered
Opinion September