Mitchell v. State, CR

• Decision Date: 19 January 1988
• Docket Number: No. CR,CR
• Citation: 294 Ark. 264,742 S.W.2d 895
• Parties: Larry Thomas MITCHELL, Appellant, v. STATE of Arkansas, Appellee. 87-62.
• Court: Arkansas Supreme Court

Page 895

742 S.W.2d 895

294 Ark. 264

Larry Thomas MITCHELL, Appellant, v. STATE of Arkansas, Appellee.

No. CR 87-62.

Supreme Court of Arkansas.

Jan. 19, 1988.

Sam Sexton, Jr., Fort Smith, for appellant.

J. Blake Hendrix, Asst. Atty. Gen., Little Rock, for appellee.

HICKMAN, Justice.

Larry Mitchell was convicted of first degree murder and sentenced to life imprisonment. Mitchell killed a friend of his, Ronald Sisk, when the two of them were drinking one evening in Mitchell's home in Fort Smith. The central issue in the case is the entry of Mitchell's residence by the police without a search warrant. When Corporal Danny Honeycutt of the Fort Smith Police Department opened the front door and looked into the Mitchell residence, he violated the Fourth Amendment to the United States Constitution. Consequently, all evidence seized or gained as a result of the entry has to be excluded from evidence. This does not include all the evidence, and the state may retry Mitchell.

First, we discuss the events leading up to the entry. The Fort Smith Police Department received the following telephone call at 10:44 a.m. on April 6, 1983:

A. (Police): Fort Smith Police Department. Sgt. Adams.

W. (Caller): Uh. Yes. I'd like to report something I'm not supposed to know. You need to go to 3408 Wilma, Short Wilma, and there is a man dead there.

A. What is he dead from, do you know?

W. I just heard that someone had shot a guy last night and that's him. Everybody has left it. That is all I am saying but I feel sorry for a man being dead in that house all night.

A. OK, Uh could you tell me how you found out?

W. I overheard it. That's all I'll tell you right now.

A. You won't leave your name or anything?

W. No. ______

A. Well, could you tell me who you heard the--done it? I mean ...

W. No, because they'll tell you.

A. Who will tell us? Ma'am?

W. They'll tell you. I'm not supposed to have heard it. I don't want to get into it.

A. Well, I know, you know.

W. They have talked to their lawyers.

A. If we had somebody ...

W. Listen, they are talking to their lawyers and they are going to tell you but so far nothing has been done but the man is dead. He is there on the couch.

A. OK. OK, now could you tell me. Start a car towards 3408 Short Wilma. Could you could you tell me the man's name because maybe they won't come forward and we are going to have to be looking.

W. I'll make sure. I'll make sure that they do. I promise. I will make sure if it is not told I will come forward.

During the call, Sgt. Adams dispatched Officer Larry Bunn to 3408 Short Wilma Street.

About the same time, Sgt. Danny Honeycutt radioed in for instructions, and the following conversation transpired.

H (Honeycutt). Let me talk to Kenneth Adams.

O (Officer). What it is this lady called in and we are supposed to have somebody who has been shot.

H. Where at?

O. 3408 Short Wilma.

H. At 3408 Short Wilma.

O. Uh-huh. I just told Larry Bunn, he was standing here. He has gone across to see if he could get a hold of 13 and go out there and check it.

H. 3408 South Wilma.

O. No, Short Wilma.

H. Short Wilma. OK. Thank you.

Honeycutt investigated and found no such residence as 3408 Short Wilma. Instead he went to nearby Wilma Street, which had a residence numbered 3408. Honeycutt testified that he walked onto the porch, knocked on the door, and received no response. He rang the doorbell a few times, still received no response, walked around the residence, spotted a neighbor and went to talk to him. He asked the neighbor if he had seen or heard anything that morning like shots, or someone leaving the house. The neighbor said he had heard nothing and Honeycutt returned to the porch as Sergeant Curtis Balch and Officer Larry Bunn arrived at the scene. Balch joined Honeycutt on the porch and Honeycutt tried the door. He found it unlocked, turned the knob, and pushed the door inward until it was caught by a chain. (The chain became controversial later. By the time Detective Caldwell arrived, the chain was broken, but no one admits breaking it. Honeycutt, though, indicates that it was intact when he opened the door.) Honeycutt stated that he had about a foot of vision into the house, and that he could see a couch and what appeared to be a body wrapped in a blanket on the floor in front of the couch. Honeycutt called into the house at that point, and someone yelled to the effect that they were all asleep and to "get the hell out." The two officers jumped off the porch with Balch yelling something like "come out with your hands up where we can see them." The officers did not identify themselves as policemen. Officer Bunn went to the back of the house and yelled that he thought someone was coming out of the back. Honeycutt ran to the back yard, and Mitchell, who is disabled and walks with a cane, had apparently exited from a back window and was limping away. (There was no back door.) Officer Bunn yelled at him to stop, which Mitchell did. Mitchell was then placed under arrest and taken to the police station.

After his arrest, but while the parties were still in the back yard, Detective David Caldwell arrived. He approached the other officers and was told by Honeycutt that there was a body on the floor in front of the couch, that the person may have been shot, and was possibly still alive. Caldwell said he opened the front door and found that the chain was attached to the door but was only draped over the wall bracket. He said he picked up the chain, undraped it from the wall bracket, opened the door, and entered the house. He said he checked the body. Finding the person dead, he then searched the house thoroughly for several hours. He had no search warrant. Besides the body, he found a .22 shell casing and a footstool; both were introduced as evidence. No murder weapon was found at the time.

The trial court found the search and seizure legal, commenting that even if it was improper, the evidence would have been seized eventually and would be admissible under the inevitable discovery rule. This rule provides that despite unlawful police conduct, evidence should be admitted if it would have been inevitably discovered by lawful means. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The state must prove the "inevitable discovery" would have occurred by a preponderance of the evidence. In Nix the evidence established that independent searchers were approaching the actual location of the body, and that the search would have been resumed had the respondent not led the police to the body. The evidence would have inevitably been found. Here, the state offered no evidence of an independent search at the time the police unlawfully entered the residence. We can only speculate that the body would have been discovered. Therefore, the search cannot be upheld under this theory.

The warrantless entry into the Mitchell home clearly violated the Fourth Amendment's prohibition of unreasonable searches. (It matters not that the door was unlocked and the officer slightly opened the door to peek inside.)

To enter a residence or a private dwelling without a search warrant, two things must be present: probable cause and exigent circumstances. First, we deal with probable cause; that is, probable cause to believe that an offense has been or is being committed. Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1978). What is probable cause, or reasonable cause as A.R.Cr.P. Rule 14.3 provides? In Brinegar v. U.S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948), the court said:

[I]t has come to mean more than bare suspicion: Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.

See also Rowland v. State, 262 Ark. 783, 785, 561 S.W.2d 304 (1978); Perez v. State, 260 Ark. 438, 541 S.W.2d 915 (1976).

Recently, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the court emphasized that the probable cause standard is a "practical, nontechnical conception," quoting:

'The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'

The court remarked that:

As these comments illustrate, probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules.... Rigid legal rules are ill-suited to an area of such diversity. 'One simple rule will not cover every situation.'

In Gates the court abandoned the prior rigid rule for determining probable cause, which was established in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and adopted instead a "totality of the circumstances" test. The court remarked that an anonymous letter standing alone probably would not provide a sufficient basis for probable cause, noting that the letter provided virtually nothing from which one might conclude that its author was honest or his information reliable. The anonymous telephone call in this case is even less revealing.

Applying these principles to the facts before us, we ask: "Did Officer Honeycutt have probable cause to believe a felony had been committed in this house when he opened the door?" Regardless of what he personally knew, he is charged with the collective knowledge...