Cherry v. State, CR

• Decision Date: 11 June 1990
• Docket Number: No. CR,CR
• Parties: Kyle Duane CHERRY, Appellant, v. STATE of Arkansas, Appellee. 89-234.
• Court: Arkansas Supreme Court

Page 354

791 S.W.2d 354

302 Ark. 462

Kyle Duane CHERRY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 89-234.

Supreme Court of Arkansas.

June 11, 1990.

G. Keith Watkins, Cave City, for appellant.

Joseph V. Svoboda Asst. Atty. Gen., Little Rock, for appellee.

PRICE, Justice.

The appellant was charged with capital felony murder. The jury convicted him of first degree murder and sentenced him to life imprisonment. He raises six issues on appeal. None have merit.

On October 21, 1988, the appellant was arrested for violating the terms and conditions of his parole. Parole officers discovered drugs and a number of firearms at a residence shared by the appellant and Bob Vargason, who was also a convicted felon on parole. The items, including a .45 pistol, were discovered pursuant to a search of the residence and of the appellant's vehicle. The appellant was taken into custody and transported to the Sharp County sheriff's office.

Ten days later, the appellant gave investigating officers two statements implicating himself in the murder of a man named Jimmie Pendergrass. Pendergrass had been found dead on April 11, 1988. His trailer had burned while he was inside. It was later determined that he had died from a blow to the head before the fire occurred.

In his statements, the appellant told officers that he knew that Pendergrass owned a number of guns. He went to the trailer on April 11, 1988, for the purpose of stealing the guns. While inside, Pendergrass arrived home unexpectedly and appellant was discovered. Pendergrass threatened Cherry with a .45 pistol, and held the gun on the appellant for several minutes while the appellant tried to talk his way out of the situation. When Pendergrass looked away for a moment, the appellant kicked him. Pendergrass fell backward, hitting his head on the bumper of the appellant's truck. At this point, the appellant said, he realized Pendergrass was dead. He dragged the body inside the trailer. The pistol, which Pendergrass still gripped in his hand, discharged unexpectedly, setting the trailer on fire. The appellant finished loading the guns which he was stealing and left the scene. On the basis of these statements, the appellant was charged with capital felony murder.

The appellant's first argument concerns the legality of the warrantless search of his vehicle. Prior to trial, he moved to suppress from evidence a .45 pistol, seized as a result of that search.

The facts are that the appellant's parole officer, Ken Opper, received information that the appellant had moved in with Bob Vargason. Opper and Bob Wilkin, who was Vargason's parole officer, went to the residence. Upon arriving, they discovered a number of firearms in the house, plus evidence of marijuana use. Opper particularly noted the presence of some loose .45 rounds and some .45 magazines in a drawer. He said to the appellant, "there is another gun here somewhere." The appellant said he had owned a .45 but had sold it.

The appellant and Vargason were arrested at this point and transported to the sheriff's office by Deputy Dennis Burton. Deputy Burton then returned to the scene to assist in the search and seizure of items from the house. (Vargason had consented to a search of the house). Parole officer Wilkin planned to search the appellant's vehicle, which was parked in the driveway. At Wilkin's request, Deputy Burton used a "Slimjim" device to unlock the door of the vehicle. Wilkin then searched the car and discovered the .45 pistol. Neither Deputy Burton nor any other member of the sheriff's office participated further in the search of the vehicle.

During the suppression hearing, it was revealed that, approximately six weeks prior to his arrest, the appellant signed a document entitled "Notice to Parolees." The document read as follows:

Any parolees' person, automobile, residence, or any property under his control may be searched by a parole officer without a warrant if the officer has reasonable grounds for investigating whether the parolee has violated the terms of his parole or committed a crime.

It is not uncommon for probationers and parolees to be subject to a condition requiring consent to various kinds of searches. See Cohen & Gobert, The Law of Probation and Parole, § 6.02 at 225 (1983). The great majority of courts have upheld the validity of this practice. Cohen & Gobert, § 5.07 at 206 and § 8.03 at 378-80; Annot., 79 A.L.R.3d 1083 (1977). The question of whether a parolee's advance consent to a warrantless search is valid has not been addressed by this court.

In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988).

The first matter to resolve is whether the "Notice to Parolee" signed by the appellant amounts to a consent. We find that it does. The notice does not contain the words, "I consent to a warrantless search," but it does recognize the possibility that such a search may occur. By signing the notice the appellant impliedly consented to a warrantless search. Implied consent has been recognized in similar contexts in which persons were aware in advance that they could be subject to a search. See United States v. Sihler, 562 F.2d 349 (5th Cir.1977) (warning sign to visitors entering penitentiary that they are subject to search); United States v. Doran, 482 F.2d 929 (9th Cir.1973) (signs and public address announcements in airport warning passengers they are subject to search at boarding).

Having determined that the notice constitutes a consent, the next question is whether such a consent-in-advance is valid. The recent United States Supreme Court case of Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), is instructive. At issue in Griffin was an administrative regulation permitting a probation officer to search a probationer's home without a warrant, so long as there were reasonable grounds to believe contraband was present. The regulation explicitly defined "reasonable grounds."

The Court held that a warrantless search pursuant to this regulation did not violate the 4th amendment. The Court recognized that supervision of probationers is a "special need" of the state, permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. Therefore, it was concluded, it is impractical to require a search warrant. It was also concluded that the usual requirement that probable cause exist to justify a search may be replaced by the reasonable grounds standard.

Using the same reasoning, we hold that this warrantless search, pursuant to appellant's implied consent, did not violate the 4th amendment. The special needs of the parole process call for intensive supervision of the parolee making the warrant requirement impractical. It is also clear, although the United States Supreme Court did not employ this line of reasoning, that the appellant, as a parolee, has a diminished expectation of privacy. Legally, he is still in custody of the penal institution from which he was released. See Ark.Code Ann. § 16-93-701(b)(4) (1987). Finally, we note that there was no contention on the appellant's part that his consent was not given voluntarily and intelligently.

We must point out that a parole/probation officer's ability to conduct a warrantless search is not unlimited. But the consent in this case, like the regulation in Griffin v. Wisconsin, supra, contains elements that insure a search will be conducted reasonably. First of all, the consent allows a warrantless search only if reasonable grounds exist. Second, the consent does not extend to all law officers, but only to parole officers, thereby preserving its purpose as a tool of parole supervision.

Having decided that the consent is valid, the final question is whether the search was carried out under the terms of the consent. Two issues must be addressed: 1) were there reasonable grounds to investigate whether the appellant had violated the terms of his parole, and 2) was the search conducted by a parole officer? We find there was compliance with both of these terms. Among the conditions of the appellant's parole was one that he not associate with convicted felons. The parole officer's knowledge that the appellant was living with another convicted felon constituted reasonable grounds to investigate the violation.

It is also clear that, despite Deputy Burton's minimal participation in the search, the search was conducted by a parole officer. A parole officer may enlist the aid of the police, and a police officer may act at the direction of the parole officer without overreaching the scope of the search. Sanderson v. State, 649 P.2d 677 (Wyo.1982).

We find the warrantless search conducted by the parole officer was valid. The trial court's action in refusing to suppress the .45 pistol was correct.

Our determination that the search was valid makes it unnecessary to address the appellant's claim that his in-custody statements should have been suppressed as the fruits of an illegal search. Howe...