Fultz v. State

• Decision Date: 18 June 1998
• Docket Number: No. CR,CR
• Citation: 333 Ark. 586,972 S.W.2d 222
• Parties: Delcie FULTZ, Appellant, v. STATE of Arkansas, Appellee. 98-41.
• Court: Arkansas Supreme Court

Page 222

972 S.W.2d 222

333 Ark. 586

Delcie FULTZ, Appellant, v. STATE of Arkansas, Appellee.

No. CR 98-41.

Supreme Court of Arkansas.

June 18, 1998.

Dale Finley, Russellville, for Appellant.

Winston Bryant, Atty. Gen., C. Joseph Cordi, Jr., Asst. Atty. Gen., Little Rock, for Appellee.

ARNOLD, Chief Justice.

On June 30, 1997, appellant, Delcie Ruth Fultz, was convicted in the Boone County Circuit Court of (1) conspiracy to deliver the controlled substance methamphetamine; (2) possession of a controlled substance with the intent to deliver methamphetamine; and (3) possession of drug paraphernalia. On appeal, Fultz first challenges the trial court's admission of evidence obtained during a warrantless search of her husband's Pontiac Firebird. She also argues that the trial court erred in admitting evidence obtained pursuant to a search warrant that was based, in part, on suppressed evidence retrieved during a warrantless search of her purse. Second, Fultz contends that the trial court applied an erroneous standard for determining whether the Pontiac search was consensual. Third, Fultz argues that the trial court erred by failing to direct verdicts on the criminal-conspiracy and possession-with-intent-to-deliver charges. Fourth, she assigns as error the trial court's admission of four witnesses' testimony that she claims is inadmissible pursuant to Ark. R. Evid. 404(b).

The issues on appeal involve the interpretation of the Fourth Amendment of the United States Constitution, Article 2, section 15, of the Arkansas Constitution, and Ark. R. Evid. 404(b). Significantly, the State urges us, in interpreting the "plain-view" exception to the Fourth Amendment's warrant requirement, to hold that Arkansas' constitutional requirements regarding that exception should be construed consistently with Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), because the Arkansas constitution provides no greater protection than the Fourth Amendment. Formerly, we have declined to reach the issue of whether inadvertent discovery is an element of the plain-view exception under the Arkansas Constitution. See Wofford v. State, 330 Ark. 8, 25, 952 S.W.2d 646 (1997); Williams v. State, 327 Ark. 213, 219, 939 S.W.2d 264 (1997). However, in light of the facts in the instant case, we now hold, consistent with Horton, that the Arkansas Constitution does not prohibit the warrantless seizure of evidence in plain view even though the discovery was not inadvertent. Moreover, finding no merit in appellant's arguments, we affirm.

On September 3, 1996, Delcie Fultz's husband, Anthony Wayne Fultz ¹, admitted to police that his Pontiac Firebird was purchased with drug money and that it had been used to transport methamphetamine from California. On September 5, 1996, Harrison Police Department officers obtained a warrant for Mr. Fultz's arrest, went to his home, and arrested him somewhere in the vicinity of his carport-kitchen door. Although witnesses' testimony conflicts as to the precise location of the vehicle and whether it was within the curtilage of the home, Mrs. Fultz concedes that the vehicle was in "plain view" at the time of the arrest. One police officer testified that the car was "right there" when Mr. Fultz was arrested.

After Mr. Fultz informed police that there might be a gun in the Pontiac, the officers seized the car and searched it pursuant to the Harrison Police Department's vehicle-inventory policy. Although the record in Mr Fultz's case indicates that he consented to the search of the car, the instant record is unclear as to consent. In any event, the search was conducted at the Fultz's residence and revealed, among other things, a sawed-off .410 shotgun, a semi-automatic AK rifle, and a pair of walkie-talkies. The officers also noted a strong odor of methamphetamine in the car.

During the search of Mr. Fultz's car, Mrs. Fultz became belligerent and shouted profanities at the officers. She was questioned about any further firearms, particularly Mr. Fultz's service revolver because he was a former police officer. She permitted one officer to come into the home to retrieve that gun. Two other officers followed, allegedly to protect the department's "reputation" since a female subject was involved. At some point, one of the officers requested permission to search Mrs. Fultz's purse. The police conducted a warrantless search of the purse, while Fultz remained silent. From the purse, the officers retrieved some plastic, square, clear boxes, which appeared to contain some white residue, purportedly methamphetamine. This evidence was identified and described in a subsequent affidavit for a search warrant.

When the police began to take Mr. Fultz to the station, Mrs. Fultz began to shout at the officers and threw a plastic glass. She was arrested for disorderly conduct and taken, in the Pontiac, to the police department. At this point, officers obtained a search warrant to search the home, including a small building located approximately forty to sixty feet from the house. Inside that building, police discovered cash, chemical residue, jars that tested positive for methamphetamine, documents including telephone numbers and evidence of drug trafficking, and evidence of a methamphetamine lab.

Mrs. Fultz objected to the evidence obtained pursuant to the search warrant because the warrant was based in part on the suppressed evidence discovered in her purse. Although the trial court suppressed evidence relating to the purse search, it found that the search warrant was valid and permitted admission of evidence obtained during the search of the car and the outbuilding. The trial court, over appellant's objection, also admitted testimony of four witnesses evidencing appellant's prior sales and concealment of methamphetamine. From these findings and appellant's convictions, comes the instant appeal.

I. Admission of Evidence

A. Warrantless Search of Pontiac

First, Fultz challenges the trial court's refusal to suppress evidence found in her husband's Pontiac Firebird. Specifically, she argues that the search and seizure violated her federal and state constitutional rights. Notably, Article 2, section 15, of the Arkansas Constitution provides the same degree of protection as the Fourth Amendment. See Stout v. State, 320 Ark. 552, 557-58, 898 S.W.2d 457 (1995). When we review a trial court's denial of a motion to suppress evidence, we view the evidence in the light most favorable to the State, make an independent determination based on the totality of the circumstances, and reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Wofford, 330 Ark. at 17, 952 S.W.2d 646.

As a general rule, searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established exceptions. Those who seek to prove an exception must demonstrate that the exigencies of the situation made that course imperative and the burden is on that party to show its need. Fultz, 332 Ark. at 626, 966 S.W.2d 892 (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion)). Moreover, when the appeal involves a challenge to the legality of a warrantless search and seizure, the State has the burden of establishing an exception to the warrant requirement. See Wofford, 330 Ark. at 17, 952 S.W.2d 646.

Here, the State asserts that the officers were entitled to seize the Pontiac pursuant to the plain-view exception to the Fourth Amendment's warrant requirement. When police officers are legitimately at a location and acting without a search warrant, they may seize an object in plain view if they have probable cause to believe that the object is either evidence of a crime, fruit of a crime, or an instrumentality of a crime. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); Coolidge, 403 U.S. at 464-74, 91 S.Ct. 2022. Significantly, even if the police did not inadvertently discover the object, the seizure does not violate the Fourth Amendment. Horton, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

Similarly, the Arkansas Constitution provides the same constitutional safeguards as the Fourth Amendment. Assuming that the police do not violate the Fourth Amendment in arriving at the place where the object can be plainly viewed, to justify a warrantless seizure, first, the object must be in plain view and its incriminating character must be "immediately apparent." Second, the officer must be lawfully located in a place to plainly view the object and must have a lawful right of access to the object. See Horton, 496 U.S. at 136-37, 110 S.Ct. 2301. In short, inadvertent discovery is not a requirement of a warrantless seizure of evidence in plain view, and Article 2, section 15, of the Arkansas Constitution, is not violated merely because the discovery was not inadvertent.

Given the evidence that two days prior to the officers' seizure and search of the car, Mr. Fultz admitted that he had used the car to transport methamphetamine from California and had paid for the Pontiac with drug money, the officers had probable cause to believe that the car was evidence of a crime and an instrumentality of a crime. Acting under the authority of an arrest warrant, the police were lawfully on the premises and in close proximity to the car at the time of arrest. Mr. Fultz's indication to the police that a gun might be in the car provides additional compelling evidence. The officers were then entitled to perform an inventory search of the car after having legally seized it pursuant to the plain-view exception. In sum, given the totality of the circumstances, the trial court's admission of the evidence seized pursuant to the Pontiac search was not clearly against the preponderance of the evidence.

B. The Search Warrant

Next, Mrs. Fultz...