Burks v. State

• Decision Date: 26 October 1987
• Docket Number: No. CR,CR
• Citation: 738 S.W.2d 399,293 Ark. 374
• Parties: Larry Wayne BURKS, Appellant, v. STATE of Arkansas, Appellee. 87-75.
• Court: Arkansas Supreme Court

Page 399

738 S.W.2d 399

293 Ark. 374

Larry Wayne BURKS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 87-75.

Supreme Court of Arkansas.

Oct. 26, 1987.

William R. Simpson, Jr., Public Defender, Deborah Sallings, Thomas B. Devine, Deputy Public Defenders, Little Rock, for appellant.

J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

PURTLE, Justice.

The appellant was convicted of capital murder and aggravated robbery. The trial court merged the robbery with the capital murder conviction and sentenced the appellant to a term of life imprisonment without parole. On appeal the appellant argues that all of his statements as well as their fruit, a handgun, should have been suppressed because the statements were made after he was "seized" without probable cause. We hold that there was probable cause for an arrest and therefore affirm appellant's conviction for capital murder.

On April 13, 1986, at approximately 10:00 p.m., two men committed aggravated robbery on the premises of a store on Confederate Boulevard in Little Rock. The owner of the store was shot during the robbery and died sometime later. One of the robbers, Clarence McClendon, was identified and arrested on April 15, 1986. A clerk at the store where the robbery occurred informed the police that she saw appellant with McClendon in the store in the afternoon of the robbery. Another clerk indicated to the police that he saw the appellant and McClendon in the store together in the afternoon and again in the evening right before the robbery. The sheriff's department also received several anonymous telephone calls implicating appellant as the other participant in the crime.

On April 21, 1986, four or five armed officers went to the College Station area with a photograph of appellant obtained from the Little Rock Police Department for the purpose of questioning appellant about the robbery. After locating him about 6:45 p.m., the officers identified themselves and requested that he go with them to the sheriff's department to answer questions about the robbery. The appellant accompanied the officers to the sheriff's department where he made incriminating statements after he was given his Miranda warnings. At 9:45 p.m. he signed a written statement which informed the officers of the location of the .22 pistol used in the robbery.

The appellant argues that he was "seized" within the meaning of the Fourth Amendment, when he accompanied the police to the sheriff's department. If the police lacked probable cause for arrest at that time, appellant's custodial statements and the handgun would have been inadmissible at his trial. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); and Rockerick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986).

The protection of the Fourth Amendment, applicable to the states through the Fourteenth Amendment, guarantees the right of people to be secure against unreasonable searches and seizures. Rule 10.1(b) of the A.R.Cr.P. defines a "seizure" as the taking of any person or obtaining of any information by an officer under the color of authority. The United States Supreme Court has concluded that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). An example given by the Supreme Court in Mendenhall of a circumstance that might indicate a seizure, even where the person did not attempt to leave, was the threatening presence of several officers. A seizure pursuant to an arrest or any other detention that severely intrudes upon a person's liberty, such as a custodial interrogation, must either be supported by probable cause, Dunaway, supra, or by clear and positive testimony that demonstrates consent. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985).

Standing alone, the fact that the appellant accompanied four or five officers to the sheriff's department without being arrested or required to go with them does not show that he consented to the detention or interrogation. Foster v. State, supra. There is no testimony or other evidence that the appellant was ever told by any of the officers that he was free to leave at any time. In view of appellant's uncontradicted testimony that he was never so informed, we conclude that the officers failed to comply with A.R.Cr.P. 2.3 which provides:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney's office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

Since the officers did not comply with...