Abernathy v. State
| Decision Date | 24 February 2021 |
| Docket Number | No. CR-19-959,CR-19-959 |
| Citation | 2021 Ark. App. 79,617 S.W.3d 738 |
| Parties | Kenneth M. ABERNATHY, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Jones Law Firm, by: F. Parker Jones III, for appellant.
Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.
Kenneth Abernathy was convicted of two felony drug charges and now appeals the Saline County Circuit Court's denial of his motion to suppress a warrantless search of his home. He argues that the police officer's warrantless entry into his home occurred without consent and that any contraband obtained after the illegal entry should have been suppressed. We agree that the officer entered Abernathy's home without legal justification and that any evidence obtained as a result of the officer's entry should have been suppressed. Because there is no evidence to support Abernathy's conviction, we reverse and remand.
In December 2018, the State charged Abernathy with possession of drug paraphernalia to inhale methamphetamine and possession of a controlled substance (methamphetamine) after law enforcement seized certain contraband from Abernathy's home upon a warrantless entry. The circuit court convened a bench trial on 9 August 2019; but prior to presenting evidence, the parties stipulated that the crime-lab report would be introduced without objection. The lab report stated that "the clear bulb in glass smoking device containing white residue was methamphetamine," that the net weight of the methamphetamine was 0.2905 grams, and that the paraphernalia and the methamphetamine had been found in Abernathy's house. The circuit court also noted that a motion to suppress would be ruled on as part of the evidence in the trial.
When the trial commenced, Danny Rucker, an officer with the Saline County Sheriff's Department, testified that on 13 October 2018, he responded to a report of property damage on White Estates Road. The report stated that a red Grand Am had been driving suspiciously back and forth and had hit a mailbox before leaving the scene. A description of the vehicle was transmitted to other local officers, and a Bryant police officer reported that he had just stopped a similar vehicle and that the driver was Kenneth Abernathy. Rucker was familiar with Abernathy, his vehicle, and where he lived. Rucker also knew that Robert Johnson, who used a wheelchair, lived with Abernathy.
Rucker explained that he went to Abernathy's home, which was a trailer, and saw the red Grand Am in the driveway. Rucker noticed damage to the front of the vehicle that fit the description of the mailbox incident. It was raining heavily when the officer went to the front porch, which had no roof, and knocked on the door. Johnson opened the door. Rucker "stepped into the threshold of the door" and asked to speak with Abernathy. Johnson yelled for Abernathy, who was not in the room. Abernathy yelled, "What?" and Rucker yelled that it was the sheriff's department and he needed to speak to him (Abernathy). As he stood at the threshold to get out of the rain, Rucker noticed a strong odor of methamphetamine being burned.
Abernathy then pulled back a blanket that had been used as a door between the living area and a bedroom; when the blanket was pulled back, Rucker saw Abernathy and a female sitting on his bed with a meth pipe. Abernathy came into the living area, and Rucker asked Abernathy if he was smoking meth but also said he (Rucker) was there to talk about the mailbox incident. Abernathy admitted hitting the mailbox, and when asked a second time if he was smoking meth, he said yes. Abernathy was "very angry" with Johnson for opening the door. Rucker detained Abernathy and sat him on the couch; he then went into the bedroom to retrieve the pipe and to make sure the woman was not armed. He brought the woman into the living area and began to detain her as well; at that point, Abernathy said, Abernathy was arrested and charged.
On cross-examination, Rucker agreed that he had stepped inside the door "for convenience" because it was raining and that he had not smelled any kind of controlled substance before he stepped inside. He also agreed that the main door to the trailer opened inward, which was important because Johnson, who was in a wheelchair, had to roll backward inside the home to open that door. Officer Rucker did not recall a storm door that he had to open before he stepped onto the threshold. He said:
I actually didn't step into the door, ma'am, I stepped onto the threshold which is a plate about the width of this here. I had my raincoat on and a rain hat and I was soaked with water and it was dripping. I tried not to enter into the—so that rain would get in his floor as I would do in my own house.
He agreed that he was "balancing" on the threshold of the door. Upon questioning by the court, Rucker explained that Abernathy had said angrily to Johnson, "Why the hell did you open the dam [sic] door ... now I'm going to friggin’ jail ... because you opened the door and let him in."
Robert Johnson testified that he had resided with Abernathy from June to October 2018. He said that he paid rent and had his own bedroom. Johnson said the door to the trailer consisted of a regular door that opened into the living area and a storm door that opened toward the outside. Johnson stated that he had seen a vehicle approach the house and had spoken to Rucker from the doorway while Rucker was still in the yard. Johnson explained, "[I]t was raining real bad and I had sorta—it takes me a minute to back up and by the time I had backed up to holler at Kenneth he was up on the porch and in the door." Johnson estimated that Rucker was "probably just a foot" inside the door and that the storm door had already been open. According to Johnson, when Abernathy entered the living area, he asked Rucker to "step back outside," but Rucker did not leave. Johnson denied ever inviting Rucker into the home or giving him any indication that he could come inside the home. But he also agreed that Abernathy had been "screaming and hollering" at him because he had let Rucker inside. The following exchange then took place between the court and Johnson:
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