Holmes v. State

• Decision Date: 07 February 2002
• Docket Number: No. CR 01-1057.,CR 01-1057.
• Citation: 65 S.W.3d 860,347 Ark. 530
• Parties: Perry Burton HOLMES v. STATE of Arkansas.
• Court: Arkansas Supreme Court

65 S.W.3d 860

347 Ark. 530

Perry Burton HOLMES v. STATE of Arkansas.

No. CR 01-1057.

Supreme Court of Arkansas.

February 7, 2002.

Frank E. Shaw, Conway, for appellant.

Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.

TOM GLAZE, Justice.

Perry Holmes was charged with possession of methamphetamine, possession of drug paraphernalia, and possession of marijuana after police, responding to a call involving another individual, entered Holmes's house and found drugs and drug paraphernalia inside. After the trial court denied his motion to suppress the items seized from his home, Holmes entered a conditional plea of guilty to the three charges; he then appealed to the court of appeals, and that court reversed his conviction. The State filed a petition for review in this court, and we accepted jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(b)(3), as the appeal involves issues of federal constitutional interpretation. We likewise reverse Holmes's conviction.

On a petition for review, this court reviews the case as if the appeal had originally been filed in this court. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999). On review of a trial court's denial of a motion to suppress, this court makes an independent examination based on the totality of the circumstances, and will reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Burris v. State, 330 Ark. 66, 71, 954 S.W.2d 209 (1997). In making that decision, the court reviews the evidence in the light most favorable to the State. Id.

On April 23, 1999, the Faulkner County Sheriff's Department responded to a domestic violence call involving a man named David Ellis. Officer David Srite located Ellis at Holmes's house, and as Srite pulled into Holmes's driveway, Holmes and Ellis came outside. Because Srite had information that Ellis might be armed, he performed a pat-down search. Other officers arrived at the scene, and Srite asked them to take Ellis and Holmes to the squad cars to interrogate them.

Srite then saw a woman, later identified as Rosa Beth Allen, standing in the doorway of the house, and decided to question her about Ellis. Srite testified that, when he asked her if there was anywhere that they could talk, Allen opened the door and stepped back.¹ Interpreting Allen's gestures as an invitation to come into the house, Srite stepped inside, whereupon he immediately smelled the strong odor of recently burned marijuana. He asked Allen where the marijuana was, and she pulled out a tray containing marijuana and drug paraphernalia. Srite then asked to whom the marijuana belonged, and Allen replied, "Perry."

Srite then went outside to talk to Holmes, and Deputy Ursula Westmoreland entered the house to stay with Allen. Srite read Holmes his Miranda rights, and then asked Holmes to sign a consent-to-search form. After Holmes signed the consent, Srite took him inside, cleared off the couch to make sure it did not have any weapons hidden in it, and then searched the house. Srite and Westmoreland found roaches (the butts of marijuana cigarettes), seeds, and marijuana; after Holmes said there was methamphetamine in a refrigerator, the police retrieved that as well.

Holmes moved to suppress these items, but the trial court denied his motion, finding that Holmes freely consented to the search and that the police were justified in entering the residence and searching it out of concern for their own safety. On appeal, Holmes argues that the trial court erred in ruling that the officers' concern for their safety justified the warrantless entry into his home. He also asserts that Rosa Beth Allen did not consent to the officers' entry, and even if she had, she did not have the authority to do so.

We agree with Holmes's argument that the trial court erred in denying his motion to suppress on the basis of the officers' safety. Rules 3.1 and 3.4 of the Arkansas Rules of Criminal Procedure are relevant here. Ark. R.Crim. P. 3.1 (2001) covers the detention of persons and reads as follows:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons² or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

Rule 3.4, which governs a police officer's search for weapons, provides:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others. (Emphasis added.)

Under Rule 3.1, Officer Srite was entitled to stop and detain David Ellis, and because Srite had reason to believe that Ellis had a weapon, he was justified in searching Ellis's outer clothing. However, as the last sentence of Rule 3.4 states, "[i]n no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer." At the time of the search, Ellis was outside, and was promptly taken to a waiting squad car for further questioning. There was no evidence to show that entry into Holmes's house was necessary or required to protect the officers' safety. Thus, once Srite determined that Ellis either was or was not a danger to Srite's safety, the search should have been terminated. Rules 3.1 and 3.4 did not authorize Srite's entry into Holmes's house, and the trial court erred in ruling otherwise.

Holmes's second point on appeal is that the trial court erred in basing its denial of the motion to suppress on Allen's "consent" to Srite's search of the house. In response, the State contends that Srite did not go into the house to "search" for anything, but merely went in to question Allen about how long Ellis had been at that location. In resolving this issue, we first must consider what constitutes a "search." Ark. R.Crim. P. 10.1 (2001) defines a search as follows: "[A]ny intrusion other than an arrest, by an officer under color of authority, upon an individual's person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intrusion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individual's rights under the Constitution of the United States or this state." (Emphasis added.) The commentary to Rule 10.1 notes that "[t]he key word in the definition is `intrusion,' a term sufficiently broad to encompass any legally cognizable interference with an individual's right to privacy.... [T]he definition of `search' is extended to cover any intrusions upon the privacy of an individual." Srite's entry into Holmes's house clearly amounted to a search, within the meaning of this rule.

We next consider whether or not the search was reasonable. On this subject, the United States Supreme Court wrote, in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the following:

[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.

* * *

It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.

* * * The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home—a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their ... houses ... shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." [Citation omitted.] In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton, 445 U.S. at 585-86, 589-90, 100 S.Ct. 1371. Further, the Court has noted that, "[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).

Consistent with the above principles, this court has likewise held repeatedly that warrantless searches in private homes are presumptively unreasonable. See, e.g., McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999); Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997). The burden is on the State to prove that the warrantless activity was reasonable. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). However, the presumption of unreasonableness may be overcome if the law-enforcement officer obtained consent to conduct a warrantless search. See Ark. R.Crim. P. 11.1 (2001); see also Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995).

In the present case, the State argues that because Holmes consented to the search of his home in writing, the search was constitutionally permissible. We cannot agree with this assessment. Holmes did not sign the consent-to-search form until after the initial intrusion had taken place and...