Foster v. State, CA

• Court: Arkansas Court of Appeals
• Writing for the Court: TERRY CRABTREE
• Citation: Foster v. State, 991 S.W.2d 135, 66 Ark.App. 183 (Ark. App. 1999)
• Decision Date: 28 April 1999
• Docket Number: No. CA,CA
• Parties: Rushun Abdul FOSTER, Appellant, v. STATE of Arkansas, Appellee. CR 98-1035.

Page 135

991 S.W.2d 135

66 Ark.App. 183

Rushun Abdul FOSTER, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 98-1035.

Court of Appeals of Arkansas Division III.

April 28, 1999.

Gregory E. Bryant, Little Rock, for Appellant.

Winston Bryant, Attorney General, C. Joseph Cordi, Jr., Assistant Attorney General, Little Rock, for Appellee.

TERRY CRABTREE, Judge.

The appellant, Rushun Foster, entered conditional guilty pleas in two cases pursuant to Arkansas Rule of Criminal Procedure 24.3(b). In CR 97-1704, appellant pleaded guilty to possession of cocaine with intent to deliver, simultaneous possession of drugs and firearms, maintaining a drug premise, possession of drug paraphernalia, and possession of marijuana. These charges arose from the execution of a search warrant of a residence on January 2, 1997. In CR 97-1279, appellant pleaded guilty to possession of cocaine with intent to deliver, possession of drug paraphernalia, and maintaining a drug premise. These charges arose from the execution of a second search warrant of the same residence on January 13, 1997. On appeal, appellant argues that the lower court erred by failing to suppress the evidence obtained by police officers during the execution of the two search warrants.

In reviewing the denial of a motion to suppress evidence, we make an independent examination based upon the totality of circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). We recognize that the Fourth Amendment incorporates the common-law requirement that police officers must knock and announce their identity before entering a dwelling. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous, futile, or that it would inhibit the investigation of the crime by, for example, allowing the destruction of evidence. Hale v. State, 61 Ark.App. 105, 968 S.W.2d 627 (1998).

Appellant asserts that the facts in the affidavit supporting the search warrant executed on January 2 were stale and that the affidavit did not state sufficient facts to justify a no-knock search. Appellant failed to argue below that the facts in the affidavit supporting the search warrant were stale. The appellate court has repeatedly held that it will not address arguments, even constitutional arguments, raised for the first time on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).

It is the duty of a court confronted with the question to determine whether the facts and circumstances of a particular entry justified waiving the knock-and-announce requirement. Hale, supra. Here, the circuit court found that the no-knock entry was appropriate in light of the officers' reasonable suspicion that knocking and announcing their presence would have been dangerous. We will not reverse that finding unless it is clearly against the preponderance of the evidence. Id.

Detective Johnny Gravett testified that after a confidential informant conducted a drug buy at the residence for the police, the informant told Gravett that there were weapons in the house and that gaining access to the house would be difficult. Gravett's affidavit also contained generalizations about the possibility that evidence could be destroyed and that officers' safety could be compromised if the police knocked and announced themselves before entry. These generalizations alone are not enough to...