Hester v. State

• Decision Date: 19 May 2005
• Docket Number: No. CR 04-875.,CR 04-875.
• Citation: 208 S.W.3d 747
• Parties: Jimmy Alan HESTER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 747

208 S.W.3d 747

Jimmy Alan HESTER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 04-875.

Supreme Court of Arkansas.

May 19, 2005.

COPYRIGHT MATERIAL OMITTED

Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Chief Justice.

In a bench trial before the Pulaski County Circuit Court, Sixth Division, appellant Jimmy Alan Hester was convicted of one count of possession of pseudoephedrine with intent to manufacture methamphetamine, one count of manufacture of a controlled substance (methamphetamine), one count of possession of a controlled substance with intent to deliver (methamphetamine), one count of possession of drug paraphernalia with intent to manufacture methamphetamine, and one count of maintaining a drug premises. For those offenses, the circuit court sentenced Hester to a total of thirty years' imprisonment and imposed fines in the amount of $5,000.

On appeal, Hester argues that the circuit court erred in denying his motion to suppress evidence found pursuant to a search warrant because the knock-and-talk procedure employed by the police resulted in an illegal seizure of his person in violation of his rights under the Fourth Amendment of the United States Constitution and Article 2, § 15 of the Arkansas Constitution. Alternatively, he argues that the knock-and-talk procedure used by the police should be declared unconstitutional per se under Article 2, § 15 of the Arkansas Constitution. Hester also argues that the affidavit for search warrant contained insufficient facts to establish probable cause. Finally, Hester contends that the circuit court erred in denying his motion to dismiss his convictions of possession of pseudoephedrine with intent to manufacture methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine because both of those offenses are lesser-included offenses of manufacture of methamphetamine.

This case was certified to this court by the court of appeals; our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(d)(1) and (2). We affirm.

Facts

The facts given in this case are taken from Little Rock Police Detective Greg Siegler's affidavit supporting a search warrant. A confidential informant told Siegler that Hester was manufacturing methamphetamine at Hester's residence located at 4330 Highway 165, in North Little Rock. The informant told Siegler that he observed glassware and several chemicals inside the residence on January 27, 2002, and that two empty apartments located directly behind the residence contained components and chemicals to manufacture methamphetamine.

Acting on this information, Siegler and other Little Rock police officers, along with members of the Pulaski County Sheriff's Department Narcotics detail and members of the North Little Rock Police Department, went to Hester's residence on January 29, 2002, at approximately 11:30 a.m. Siegler stated that while at the residence, detectives smelled a strong chemical odor coming from the residence and the two vacant apartments at the rear of the house. Siegler and other officers knocked on the front door of the residence, and Hester answered. The officers requested Hester's consent to search the residence, and Hester refused. After Hester refused consent to search, the scene was secured, and Hester was not allowed to go back into his home for some four hours while the police obtained a search warrant.

Kim Moore was also at the residence. When Hester answered the door, Moore exited the residence and began talking to Detective Ken Blankenship of the Little Rock Police Department. According to Siegler, Moore told Blankenship that she had arrived at Hester's residence earlier in the day and that she and Hester had smoked methamphetamine while they were inside the home. Siegler also stated that Moore said she saw inside the house approximately one-half gram of methamphetamine, numerous pieces of drug paraphernalia, and a large chemical can.

Based on this information, District Judge Lee Munson issued a search warrant that authorized a search of the "residence, curtilage and vehicles located at 4330 Hwy. 165, 4330 Hwy. 165, Apartment `A,' and 4330 Hwy. 165, Apartment `B,' North Little Rock, Pulaski County, Arkansas, and occupied by Jimmy Hester." Siegler and other law enforcement officers executed the warrant at approximately 3:30 p.m., on January 29, 2002; they seized methamphetamine, pseudoephedrine, and various items of drug paraphernalia.

Motion to Suppress

Prior to trial, Hester filed a motion to suppress, contending that the search of his residence and the vacant apartments was unlawful and that evidence seized as a result of that search should be suppressed. When reviewing the circuit court's ruling on a motion to suppress evidence from a search, this court conducts a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). We defer to the circuit court in assessing the credibility of witnesses. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002).

A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. Ark. R.Crim. P. 2.2(a) (2004). The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request. Id. In making a request pursuant to this rule, no law enforcement officer shall indicate that a person is legally obligated to furnish information or to otherwise cooperate if no such legal obligation exists. Ark. R.Crim. P. 2.2(b) (2004). Compliance with the request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such a request was made by a law enforcement officer. Id.

In Arkansas, "knock and talk" is a label for a procedure that is defined as follows:

Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's "castle" with the honest intent of asking questions of the occupant thereof whether the questioner be a pollster, a salesman, or an officer of the law.

Keenom v. State, 349 Ark. 381, 387, 80 S.W.3d 743, 746 (2002) (quoting Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964)). During a knock-and-talk, a police officer may approach a person's residence to ask questions related to an investigation without probable cause or reasonable suspicion. See McDonald v. State, 354 Ark. 216, 223-24, 119 S.W.3d 41, 46 (2003). As a general rule, where consent is freely and voluntarily given, the knock-and-talk procedure has been upheld as a consensual encounter and a valid means to request consent to search a house. See Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002).

Hester contends that he was illegally seized during the knock-and-talk procedure because after refusing consent, he was denied reentry into his home for some four hours.

To support this proposition, Hester cites Keenom, supra. In that case, police arrived at Keenom's mobile home at 11:30 p.m. to question him about alleged methamphetamine manufacturing. Before the officers knocked on the door, Keenom stepped outside to meet them. One of the detectives asked Keenom for permission to search his trailer, and Keenom refused consent. Keenom, who was barefoot and wearing only a pair of jeans when the officers arrived, suggested to the police that they leave and come back in ten minutes, but they responded that they could not do that. The officers remained and continued to question Keenom.

During the questioning, Keenom requested to go inside because it was storming and cold, but the police refused to let him return to his trailer. After an unspecified amount of questioning, Keenom admitted that he had a quarter gram of methamphetamine in his trailer and that he had allowed others to rent his residence for use in manufacturing methamphetamine. Detectives then arrested Keenom for conspiracy to manufacture methamphetamine. Based upon the information obtained during the knock-and-talk procedure, the officers obtained a search warrant. As a result of the search, the officers reported finding weapons, drug paraphernalia, and lab materials, and Keenom was subsequently charged with manufacturing methamphetamine and simultaneous possession of drugs and firearms.

In Keenom, we concluded that under the totality of the circumstances in the case, the officers exceeded the inherent limitations of the knock-and-talk procedure. The officers' "persistence in the face of appellant's efforts to terminate the encounter and his request that the officers leave, resulted in his being seized in violation of his Fourth Amendment rights." Keenom, 349 Ark. at 390, 80 S.W.3d at 748. Further, we stated that "[s]uch prolonged questioning, leading as it did to appellant's unsuccessful attempts to return to the safety and solitude of his house, would surely lead a reasonable person to believe that he could not ignore the officers." Id., 80 S.W.3d at 748. This court went on to state that the search warrant executed in the case was based upon the statements made by appellant to the officers following his illegal seizure and, thus, the fruits of the warrant were poisoned by the officers' unlawful conduct in seizing the appellant. Id. at 391, 80 S.W.3d at 748. Accordingly, this court concluded that the appellant was deprived of his Fourth Amendment rights and the evidence...