Butler v. State

• Decision Date: 04 May 1992
• Docket Number: No. CR,CR
• Citation: 829 S.W.2d 412,309 Ark. 211
• Parties: Larry Kenneth BUTLER, Appellant, v. STATE of Arkansas, Appellee. 91-250.
• Court: Arkansas Supreme Court

Page 412

829 S.W.2d 412

309 Ark. 211

Larry Kenneth BUTLER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-250.

Supreme Court of Arkansas.

May 4, 1992.

Don Lloyd Cook, Fayetteville, for appellant.

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

HOLT, Chief Justice.

The primary issue in this case is whether the trial court erred in denying the motion of the appellant, Larry Butler, to suppress all evidence obtained from the warrantless entry of Springdale police officers into Butler's home for the purpose of arresting him on a disorderly conduct charge. We find that it did and reverse and remand.

The underlying facts of this novel situation show that on October 22, 1989, Butler called the Springdale Police Department to complain of a disturbance in his neighborhood. Officer Rusty Sudduth responded to the call. Apparently, communication between Butler and Officer Sudduth, on the front porch of Butler's home, deteriorated due to the barking and growling of Butler's dog while they were trying to talk. As a result, Butler asked his wife to call for another police officer and reentered his home; Officer Sudduth followed and told him that he was under arrest for disorderly conduct. It is disputed as to when Officer Sudduth told Butler that he was under arrest; Butler claims that Officer Sudduth told him after the officer had entered his home, and Officer Sudduth claims that he told Butler while crossing the doorway threshhold. It is not disputed that Officer Sudduth did not place Butler under arrest while they were both on Butler's front porch.

After Butler had reentered his home, he spoke on the telephone with the Springdale Police dispatcher; shortly thereafter, Sergeant Steve Clark arrived, entered the home, and advised Butler that he was under arrest for disorderly conduct. While Butler was still talking on the telephone with the dispatcher, Officer Sudduth unplugged the telephone. Sgt. Clark placed Butler's right wrist in a wrist lock, and Officer Sudduth grasped Butler's left elbow and forearm, which was in a sling because Butler had broken his left arm. When Officer Sudduth touched Butler's left arm, Butler screamed and fell on the floor. An ambulance was called, and Butler was taken to the hospital; he was arrested upon release.

Butler was charged in the Springdale Municipal Court with disorderly conduct and refusal to submit to arrest. On June 1, 1990, Butler was found not guilty of the disorderly conduct charge and guilty on the refusal to submit to arrest charge. He was sentenced to ten days in the Springdale City Jail, fined $100.00 dollars, and assessed $52.25 in court costs.

Butler appealed to the Washington County Circuit Court, and on May 2, 1991, the trial court found him guilty of refusal to submit to arrest and sentenced him to 15 days in jail, along with a fine of $200.00 and court costs in the amount of $62.75.

Now on appeal, Butler asserts three points of error: 1) that the trial court erred in denying his motion to suppress all evidence from the time of the illegal entry into his home, 2) that the trial court erred in not holding that Ark.Code Ann. § 5-54-103(b)(3) (Supp.1991) was unconstitutional in that it is violative of the Fourth Amendment of the Constitution of the United States, and 3) that the trial court erred in allowing evidence of testimony from a municipal court trial into a de novo circuit court appeal and allowed the prosecutor to act as a witness. We find Butler's first argument persuasive and reverse and remand.

As an initial matter, the State asserts that this argument is not preserved for appeal on the basis that A.R.Cr.P. 16.2(b) provides that a defendant is to make a motion to suppress evidence at least ten days in advance of the trial date, except that the court for good cause shown may entertain a motion to suppress at a later time. In this case, on the date of Butler's trial, Butler orally asked the trial court to suppress evidence of his arrest on the basis that the arrest was unlawful. The trial court took the motion under advisement pending the hearing of testimony relating to the issue. The trial commenced, and, after the close of all of the evidence, the trial court determined that once Officer Sudduth had reasonable cause to effect the arrest, he could lawfully follow Butler into his residence to effectuate the arrest. The trial court then overruled Butler's motion to suppress evidence and found that the arrest was legal under the circumstances.

We note that the State did not object at trial to Butler's motion being untimely, but instead presented all of the evidence it had in opposition to the motion. While the trial court might have raised the issue on its own, it did not do so, but heard the motion on its merits. Rule 16.2 does not mandate the denial of every motion which is untimely, and in the absence of a timely objection, we cannot conclude that the motion to suppress was not properly before the trial court or that the trial court's ruling on it was not properly preserved for review. See Vega v. State, 26 Ark.App. 172, 762 S.W.2d 1 (1989).

Butler's claim that the trial court erred in denying his motion to suppress all evidence from the time of the illegal entry into his home is a federal issue. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

We find the United States Supreme Court case of Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), to be instructive. In that case, the Supreme Court held that a warrantless, nighttime entry into a home to arrest an individual for driving while under the influence of an intoxicant was prohibited by the Fourth Amendment. The Court stated:

It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of...