Breshears v. State

• Decision Date: 15 February 2006
• Docket Number: No. CA CR 05.393.,CA CR 05.393.
• Citation: 228 S.W.3d 508
• Parties: Daniel R. BRESHEARS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

228 S.W.3d 508

Daniel R. BRESHEARS, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 05.393.

Court of Appeals of Arkansas, Division IV & I.

February 15, 2006.

Darrell Blount, Hot Springs, for appellant.

Mike Beebe, Ark. Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., Little Rock, for appellee.

JOSEPHINE LINKER HART, Judge.

Daniel R. Breshears was convicted in a Garland County jury trial of manufacturing methamphetamine and doing so in the presence of a child. He was sentenced to forty years on the manufacturing charge and an additional term of ten years to be served consecutively for the enhancement. On appeal, he argues that the trial court erred in refusing to grant his motion to suppress evidence seized by police during an illegal search of his residence. We agree, and we reverse and remand.

At the hearing on Breshears's motion to suppress, Garland County Sheriff's Deputy Ray Cameron testified that on March 5, 2004, he was dispatched to 134 Wyles Lane in Jessieville in response to a complaint of criminal trespass. According to Deputy Cameron, he "knocked on the door and a man [Breshears] come to the door, and I asked him was he supposed to be living there and he said yes." He then asked dispatch to call the landlord, R.L. Wyles. When Wyles arrived, he told Deputy Cameron that "no one was supposed to be living there." Wyles subsequently entered the mobile home and invited Deputy Cameron to accompany him.

Once inside, Deputy Cameron encountered a woman who appeared to be "about eight months pregnant" and a "little baby running around," which gave him the impression that "somebody was living there." He also noticed a "strange chemical odor," along with "needles and chemicals to make meth with, and generators." He claimed that he did not "search" the house for the suspected contraband but was merely "trying to secure it and check it out to see if anybody was living in it." Nonetheless, Deputy Cameron noticed drug paraphernalia "laying on the cabinet and in the floor" in the kitchen/living room area. According to Deputy Cameron, his "eyes were burning," and he ordered everyone outside while he called the Drug Task Force.

On cross-examination, Deputy Cameron admitted that when Breshears answered the door, Breshears told him that he was living in the mobile home, although he claimed that Breshears "didn't say nothin' `bout rent." He admitted that he asked for consent to search, but Breshears refused to allow him to enter. Deputy Cameron also admitted that Wyles did not present any documents showing that he owned the dwelling and that Breshears "seemed to recognize Mr. Wyles" when the landlord came to the residence.

Wyles testified that he was the owner of the dwelling at 134 Wyles Lane and the mobile-home park in which it was situated. He stated that Breshears had rented one of his mobile homes and was living in it on March 5, 2004. Wyles noted, however that he had "evicted" Breshears, and when he noticed smoke coming out of the vent pipe of the mobile home, he called the police. When he arrived at the scene, he found that Breshears was "still" in the dwelling. He acknowledged that Breshears "wouldn't let the police in; and they'd called me and I'd come up there `cause I own the trailer." Wyles stated that he gave the police "the okay to go in." Later, he signed a form to consent to the search. On cross-examination, Wyles confirmed that Breshears was renting the trailer at the time the police entered. He claimed that he had "evicted" him by either putting an eviction notice on the door or handing it to him. The notice gave Breshears seven days to vacate. Wyles admitted that, prior to the time he gave the police permission to enter Breshears's home, he had not been inside because "I don't check on the tenants. If everybody's paying rent good, I don't check on `em, and I — I never had been in his trailer."

Garland County Sheriff's Department Investigator Cory DeArmon testified that he was assigned to the Eighteenth East Drug Task Force on March 5, 2004, when he was summoned to Breshears's residence. Upon arrival, he was told by a Garland County deputy that there was a suspected meth lab inside. Wyles gave him the "notice to quit" and told him that no one was supposed to be living there. Investigator DeArmon asked for and received from Wyles consent to search the trailer. Inside, he found components of a meth lab. DeArmon admitted that he knew that the law required that a tenant be given ten days' notice to vacate when eviction is sought by a landlord. He confirmed that the only documentation presented to him was Wyles's notice, dated February 24, 2004, on which Wyles had scratched out the ten and wrote "7". DeArmon also conceded that the notice also recited that "date of service, Saturday, Sunday, and legal holidays" were expressly excluded from the time to vacate. Nonetheless, he claimed that he understood the law to allow a landlord to re-enter the dwelling after the expiration of ten days. DeArmon also stated, however, that he did not simply rely on the documentation but also on the information that Deputy Cameron gave him concerning the propriety of entering Breshears's residence. The trial court denied the motion to suppress.

On appeal, Breshears argues that the trial court erred in refusing to grant his motion to suppress evidence seized by police during an illegal search of his residence. He notes that there were actually two searches, the first by Deputy Cameron and the second by Drug Task Force officers. Breshears asserts that Deputy Cameron was not entitled to rely on the consent of the landlord to enter the residence, and therefore, evidence obtained by police during the subsequent illegal entry must be suppressed under the doctrine of "fruit of the poisonous tree." Breshears acknowledges that under United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), consent to search may be granted by a third party "if freely and voluntarily given," provided the party has "actual or apparent authority to grant the consent." He concedes that Wyles freely and voluntarily gave the consent, but asserts that Wyles had neither actual nor apparent authority to consent. Breshears further notes that Matlock provides that "the validity of the consent under the Fourth Amendment standards cannot rest upon the ownership of the premises. Instead it rests upon mutual use of the property by persons generally having joint access or control for most purposes." Citing Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), for the proposition that common authority must not be inferred and the burden is upon the State to prove it exists, Breshears argues that the burden is not met if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry. He contends that Deputy Cameron made no inquiry into Mr. Wyles's status as a person who had mutual use of or equal access to the property, even though this was the type of situation where "the facts known by police cry out for further inquiry." Accordingly, it was not reasonable for the police to proceed on the theory that "ignorance is bliss."

Regarding the second search, Breshears argues that because Deputy Cameron's entry was illegal, the Drug Task Force's subsequent entry was likewise illegal and the evidence seized was fruit of the poisonous tree. Furthermore, he asserts that the second search could not be found to be independently valid because the notice to quit that was provided to the Drug.Task. Force officers and the attendant circumstances that were made known to the Drug Task Force, including the fact that Breshears was obviously residing in the mobile home, did not support a reasonable conclusion that Wyles had the legal authority to enter the residence or consent to the police's entry. Breshears notes that the eviction procedure relied on by Wyles did not comport with Arkansas Code Annotated section 18-16-101 in either the length of time necessary for proper notice or in the steps required to retake possession of the property, and therefore, the police's entry was a mistake of law, and not a mistake of fact. We find these arguments persuasive.

Our standard of review for a trial court's action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Love v. State, 355 Ark. 334, 138 S.W.3d 676 (2003). We give considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts and defer to the superior position of the trial judge to pass upon the credibility of witnesses. Id.

Illegal entry by law enforcement officers into the homes of citizens is the "chief evil" the Fourth Amendment is intended to protect against and therefore is of the highest degree of seriousness. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). It is settled law in this state that warrantless entry into a private residence is presumptively unreasonable under the Fourth Amendment. Latta v. State, 350 Ark. 488, 88 S.W.3d 833 (2002). Nonetheless, that presumption may be overcome if the police officer obtained consent to conduct a warrantless search. See Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002); see also Ark. R.Crim. P. 11.1 (2003) ("An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search or seizure."). However, consent to search the premises can only be given by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent. Ark. R.Crim. P. 11.2(c) (2003). The determination of third-party consent, like other factual determinations relating to searches and seizures, must be judged against an objective standard. See Hillard v. State, 321 Ark. 39, 900 S.W.2d 167...