Lauderdale v. State

Decision Date18 June 2003
Docket NumberNo. CA CR 02-1009.,CA CR 02-1009.
Citation82 Ark. App. 474,120 S.W.3d 106
PartiesRonnie B. LAUDERDALE v. STATE of Arkansas.
CourtArkansas Court of Appeals

SAM BIRD, Judge.

Appellant Ronnie Lauderdale entered a plea of nolo contendere to possession of cocaine in the Circuit Court of Crittenden County. He was sentenced to ten years in the Arkansas Department of Correction and fined $5000. In this appeal, he contends that the trial court erred by not granting his motion to suppress evidence found as a result of an illegal search. We reverse and remand for further proceedings consistent with this opinion.

In Davis v. State, 351 Ark. 406, 413, 94 S.W.3d 892, 896 (2003), our supreme court clarified the appropriate standard for review of a suppression challenge: "Our standard is that we conduct 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 trial court."

On October 17, 2000, the United States Marshal Service, acting on a federal warrant for arrest for violation of probation, located Mr. Lauderdale at an apartment in Marion, Arkansas. The marshals ultimately arrested him for the probation violation and secured the residence. They also detained Keith McClendon after observing him exit a bathroom where they found in plain view what was suspected to be cocaine. Both individuals were handcuffed and seated on a couch in the living room of the apartment. Based on the discovery of suspected cocaine in the bathroom, the marshals contacted the Marion City Police. The marshals testified that they made a protective sweep through the apartment, and that after the sweep, there was no threat of harm to them by either Mr. Lauderdale or Mr. McClendon.

One of the marshals noticed a black bag that was near the couch on which both suspects were seated. Mr. Lauderdale claimed the bag and was asked if he would consent to a search of it. Mr. Lauderdale refused his consent to the search of the bag, the marshals did not search it based on their belief and experience that a search warrant would have been necessary to do so. The marshals testified that neither Mr. Lauderdale nor Mr. McClendon had access to the bag or had the ability to remove any evidence from it. The Marion City Police were notified, and they arrived at the scene shortly thereafter.

Marion Police Officer John Millsap testified that when he arrived at the apartment with Officer Darren Richardson, the scene was secured and the marshals advised him that they had completed a walk-through of the house. At this time Officer Millsap field tested the substance found in the bathroom. It tested positive for cocaine. Meanwhile, Officer Richardson had gone into the living room and opened the black bag, where he found nearly twenty grams of suspected cocaine. Officer Millsap testified that he then telephoned his supervisor, Captain James Wilson, who directed him to attempt to get consent to search the residence. Mr. Lauderdale refused to consent to a search of the apartment, and Captain Wilson subsequently prepared an affidavit for a search warrant, with the affiant being Officer Millsap.

The affidavit described the items sought and referred to attached Exhibits A and B. Exhibit A consisted of a description of the places to be searched, and Exhibit B recited Officer Millsap's basis for seeking the warrant. His stated basis was limited to the marshals' discovery of cocaine in plain view in Lauderdale's bathroom. It did not refer to the black bag. Attachments to this exhibit included the marshals' arrest warrant and their individual written statements, which, with one exception, were also limited to the arrest and the discovery of the cocaine in the bathroom. The statement of Deputy Marshal Woods, however, contained a reference to the improper search of the black bag in the living room. Deputy Woods' statement presented to the issuing magistrate was that after the local officers arrived, they opened the bag and found more suspected narcotics.

Apparently, this statement was overlooked by Lauderdale, who neither refers to the statement in support of his argument here, nor includes the statement in his addendum.1 It was also apparently overlooked by the circuit court, as well, because the court stated in its ruling that the contents of the black bag were not used by the issuing magistrate as a basis for the search warrant. Furthermore, the record does not specifically indicate that the judge who issued the warrant even read Marshal Woods' statement, although he testified that he considered the affidavit and attachments in determining the existence of probable cause to issue the warrant. Nonetheless, the fact that the evidence obtained in the black bag was used as a basis for the search warrant is not dispositive.

I. Admission of Evidence

A. Warrantless Search of the Black Bag

Before determining the validity of the search warrant and admissibility of any evidence seized as a result, we must first determine if the search of the black bag was legal. We hold that it was not. Arkansas Rule of Criminal Procedure 12.5 (2001), is applicable in this case. Rule 12.5 states the following:


(a) If at the time of the arrest:

(i) the accused is in or on premises all or part of which he is apparently entitled to occupy; and

(ii) in view of the circumstances the officer has reason to believe that such premises or part thereof contain things which are:

(A) subject to seizure; and

(B) connected with the offense for which the arrest is made; and

(C) likely to be removed or destroyed before a search warrant can be obtained and served;

the arresting officer may search such premises or part thereof for such things, and seize any things subject to seizure.

(b) Search of premises pursuant to subsection (a) shall only be made contemporaneously with the arrest, and search of building interiors shall only be made consequent upon an entry into the building made in order to effect an arrest therein. In determining the necessity for and scope of the search to be undertaken, the officer shall take into account, among other things, the nature of the offense for which the arrest is made, the behavior of the individual arrested and others on the premises, the size and other characteristics of the things to be searched for, and whether or not any such things are observed while making the arrest.

In this case, there was no evidence to show that entry into the black bag was necessary to prevent the destruction of evidence. In its ruling, the trial court stated:

If, if the evidence found in the black bag, the cocaine found in the black bag, were being introduced as a result of that search, and that search alone, the court would have some problems with that search, particularly in the face of a denial of consent and the fact that the court doesn't see much exigent circumstances insofar as the defendants were handcuffed, they didn't have access to the bag, the officers had already ascertained that there was no one else in the house to pose any threat.

Furthermore, there was testimony by the three federal marshals present at the scene that both Lauderdale and McClendon were handcuffed and seated on the couch. Marshal Bradbury testified that at this point there was no threat of Mr. Lauderdale or Mr. McClendon doing any harm to the officers, and that it was safe to assume that neither one had the ability to remove any evidence from the apartment or from the black bag. Marshal Boock testified that once under arrest, neither individual had any ability to do harm to the officers. Officer Richardson, the officer who conducted the search of the black bag, testified that when he arrived, both Mr. Lauderdale and Mr. McClendon were handcuffed and on the couch; and that he did not fear any physical threat to any of the officers when he began to search the black bag. Nonetheless, Officer Richardson stated that he was looking for weapons. Based on the foregoing facts, we conclude that the search of the black bag was illegal.

Since we hold that the initial search of the black bag was illegal, we now must decide if the evidence, including the contents of the black bag and all evidence discovered as a result of the search warrant, was inadmissable. We note, however, that the evidence initially discovered in plain view in the bathroom was admissible. Arkansas Rule of Criminal Procedure. 14.4 allows an officer who is otherwise lawfully present at a place, to seize an object that is in plain view, if its incriminating character is immediately apparent. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998).

B. The Search Warrant

The State urges this court to disregard the trial court's basis for denying Lauderdale's motion to suppress in that it incorrectly concluded that the issuing magistrate did not have illegally obtained information before it. In doing so, the State submits that we should look to Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). The Arkansas appellate courts have only discussed Murray in two published opinions, Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998), and Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997). In both cases, Murray was read to require a two-part test to determine whether the inclusion of illegally obtained information in an affidavit precludes the application of the independent-source doctrine. First, the appellate court examines the search warrant by excising the offending information from the probable cause affidavit and determines whether the affidavit nevertheless supports the issuance of a search warrant; second, the appellate court examines...

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3 cases
  • Daye v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • November 22, 2022
    ...whether the officer "would have applied for a warrant" if he had not illegally searched the defendant's briefcase); Lauderdale v. State, 120 S.W.3d 106, 112 (Ark. Ct. App. 2003) ("[T]he core judicial inquiry . . . is a subjective one ...." (quoting Restrepo, 966 F.2d at 972)); People v. Wei......
  • Baird v. State
    • United States
    • Arkansas Court of Appeals
    • November 12, 2003
    ...whether, after excising the tainted material, the affidavit is sufficient to support the issuance of the warrant. Lauderdale v. State, 82 Ark.App. 474, 120 S.W.3d 106 (2003). Obviously, it is not sufficient here where only tainted material was Additionally, we disagree with the State's cont......
  • Johnson v. State
    • United States
    • Arkansas Court of Appeals
    • September 19, 2018
    ...of illegally obtained information in an affidavit precludes the application of the independent-source doctrine. Lauderdale v. State , 82 Ark. App. 474, 120 S.W.3d 106 (2003). First, the appellate court examines the search warrant by excising the offending information from the probable-cause......

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