Ilo v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Donald L. Corbin
• Citation: Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (Ark. 2002)
• Decision Date: 26 September 2002
• Docket Number: No. CR 02-274.,CR 02-274.
• Parties: Kisha ILO v. STATE of Arkansas.

85 S.W.3d 542

350 Ark. 138

Kisha ILO v. STATE of Arkansas.

No. CR 02-274.

Supreme Court of Arkansas.

September 26, 2002.

COPYRIGHT MATERIAL OMITTED

Bill Luppen, Little Rock, for appellant.

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

DONALD L. CORBIN, Justice.

Appellant Kisha Ilo was charged in the Faulkner County Circuit Court with possession of a controlled substance (marijuana) with intent to deliver, possession of drug paraphernalia, and maintaining a drug premises. Her charges were the result of a search warrant executed on her home in Conway. She filed a motion to suppress the evidence on the ground that the police violated her constitutional rights by failing to knock and announce their presence prior to forcibly entering the residence. The trial court denied the motion to suppress. Thereafter, Appellant entered conditional guilty pleas, pursuant to Ark. R.Crim. P. 24.3(b), and was sentenced to six years' imprisonment on each of the charges. She appealed the suppression issue to the Arkansas Court of Appeals, and it reversed the trial court's ruling. See Ilo v. State, 76 Ark.App. 516, 69 S.W.3d 55 (2002). The State petitioned for review of that decision, and we granted the petition pursuant to Ark. Sup.Ct. R. 1-2(e). For the reasons outlined below, we affirm the trial court's denial of suppression.

The record reflects that a search warrant was obtained on Appellant's residence at 1906 Dave Ward Drive in Conway on January 19, 2000. It was executed that same date. The affidavit in support of the search warrant, filed by Investigator William Tapley of the Conway Police Department, set out the grounds for probable cause to believe that Appellant and her husband were engaged in ongoing sales of marijuana from their residence. The affidavit reflected that Tapley had conducted surveillance on the residence on several occasions over a period of approximately six weeks. During that time, Tapley observed heavy traffic coming to the residence for short periods of time. Many of the visitors would enter the residence and stay for only two or three minutes and then depart. On some of the occasions, only the passenger would enter the residence, while the driver waited in the car. From his training and experience as a narcotics investigator, Tapley recognized this type of traffic pattern as being consistent with the sale of narcotics.

On one occasion, about one month prior to obtaining the search warrant, Tapley approached the home to talk to the residents. While at the door, he smelled the distinct odor of burning marijuana coming from inside the residence. On another occasion, the day before he obtained the search warrant, Tapley and another Conway police officer, Investigator Tommy Balentine, observed two persons in a vehicle stop at the residence, enter the residence for approximately three minutes, and then leave. Thereafter, another Conway police officer stopped the vehicle for a motor-vehicle equipment violation. During the traffic stop, the occupants consented to a search of the vehicle, which revealed approximately one-quarter pound of marijuana. One of the occupants of the vehicle, George Weatherly, told the officers that he had been buying marijuana from the residence for approximately one year and that he had seen a handgun at the residence during the drug transactions on at least two occasions and as recently as two weeks ago. Based on this information, the officers sought and obtained a search warrant on Appellant's home.

Both the affidavit and the warrant were prepared by the Conway Police Department. The affidavit contained a request to dispense with the requirement that the officers knock and announce their presence before entering. That request was based on the information supplied by Weatherly about the presence of a handgun inside the residence. The warrant itself, however, did not contain a no-knock provision. According to Tapley's later testimony, the issuing magistrate approved the no-knock entry. He explained that the omission of a no-knock provision from the face of the search warrant was due to a clerical oversight on the police department's part.

During the hearing below, Appellant challenged the veracity of the information concerning the firearm. Appellant presented testimony from Weatherly, who denied ever having told the officers that be had seen a firearm inside the residence during his past drug transactions. He further denied ever seeing any firearm inside Appellant's residence. Tapley and Balentine, however, maintained that Weatherly had supplied such information. Both officers testified that they interviewed Weatherly on January 18, and that he admitted that he had been purchasing marijuana from Appellant's residence for about one year. In response to questions about the presence of firearms in the home, Weatherly told them that he had seen a handgun at the residence during his drug transactions on at least two occasions, the most recent being two weeks earlier.

At the conclusion of the suppression hearing, the trial court granted Appellant's request to submit a brief on the suppression issue. In her post-hearing brief, Appellant argued for suppression of the evidence on the grounds that (1) the warrant itself did not provide for a no-knock entry; (2) there was no credible evidence from which the officers could deduce the presence of firearms on the premises; and (3) the alleged presence of a firearm two weeks earlier was too remote in time, or stale, to justify the no-knock entry. After receiving briefs from both sides, the trial court entered a written order denying the motion to suppress, based upon the testimony and the evidence presented at the hearing.

The court of appeals reversed the trial court's ruling on the ground that the evidence of the presence of a firearm in the home two weeks earlier was stale. Accordingly, the court of appeals concluded that such stale information did not amount to a reasonable suspicion that knocking and announcing under the particular circumstances would be dangerous. The court of appeals thus held "that merely seeing a handgun at a residence two weeks earlier is too remote in time to predicate a fear that such handgun will continue to be present and endanger officers, absent any other compelling facts to suggest otherwise." no, 76 Ark.App. at 521, 69 S.W.3d at 59. We granted the State's petition for review of that decision. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Hughes v. State, 347 Ark. 696, 66 S.W.3d 645 (2002); Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). We begin our analysis of the issues on appeal by examining the relevant law regarding the use of no-knock entries.

In Wilson v. Arkansas, 514 U.S. 927, 929, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the Supreme Court established that the "common-law `knock and announce' principle forms a part of the reasonableness inquiry under the Fourth Amendment." The Court observed that not every entry must be preceded by an announcement; rather, the Court stated that "[t]he Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Id. at 934, 115 S.Ct. 1914.

Two years after Wilson, the Supreme Court revisited the knock-and-announce principle. In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the Court established the following guidelines:

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 or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard — as opposed to a probable-cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.

Id. at 394-95, 117 S.Ct. 1416 (citations omitted). The reasonableness of the officers' decision to enter without knocking and announcing their presence must be evaluated as of the time they entered the premises. Id. It is the duty of the courts to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement. Id.

Where the court determines that the police were not justified in conducting a no-knock entry because there were no exigent circumstances present, exclusion or suppression of the evidence obtained in the search is the appropriate remedy. Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648, cert. denied, 528 U.S. 927, 120 S.Ct. 321, 145 L.Ed.2d 250 (1999). Upon review of a trial court's denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances, viewing the evidence in a light most favorable to the State, and we reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Id. With this standard in mind, we turn to the merits of Appellant's arguments.

For her first point, Appellant argues that the trial court erred in refusing to suppress the evidence because the search warrant did not specifically authorize a no-knock entry. We agree with the court of appeals that a search warrant need not contain a specific provision dispensing with the requirement to knock and announce because the reasonableness of the officers' decision to make a no-knock entry must be evaluated as of the time that the warrant is executed. The Supreme Court addressed this issue directly in Richards, 520 U.S. 385, 117 S.Ct....