Rhoades v. State, CA

• Citation: 270 Ark. 962,607 S.W.2d 76
• Decision Date: 29 October 1980
• Docket Number: No. CA,CA
• Parties: Allan RHOADES and David Emmerling, Appellants, v. STATE of Arkansas, Appellee. CR 80-31.
• Court: Court of Appeals of Arkansas

Page 76

607 S.W.2d 76

270 Ark. 962

Allan RHOADES and David Emmerling, Appellants, v. STATE of Arkansas, Appellee.

No. CA CR 80-31.

Court of Appeals of Arkansas.

Oct. 29, 1980.

Rehearing Denied Dec. 3, 1980.

R. David Lewis, Little Rock, for appellants.

Steve Clark, Atty. Gen. by Joseph H. Purvis, Deputy Atty. Gen., Little Rock, for appellee.

NEWBERN, Judge.

The main question presented is whether the trial court erred in admitting into evidence marijuana seized at the time the appellants were arrested. That issue centers upon the decision in Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), and the problem presented when an undercover police agent obtains entry into a suspect's home by ruse, and the entry results in the seizure of contraband. The state has asked us to extend the rationale of the Lewis case. There, an arrest occurred as a result of analysis of contraband which was purchased and carried away by an undercover police agent who had gained entry by deception. Here, a "seizure" occurred on the premises to which entry had been obtain by deception. We agree the Lewis rationale may be so extended, and thus we affirm. The appellants have raised other points which will also be discussed.

With the assistance of undercover police officer Sylvester, the appellants assembled a large quantity of marijuana at the mobile home of the appellant Rhoades and his spouse. The reason it was brought there was so that it might be purchased by Sylvester who was posing as a "big money man" who wanted to purchase a large quantity of marijuana. Sylvester had been introduced to Mr. and Mrs. Rhoades by a police informant who had worked with Michigan authorities and who had informed Arkansas officials that a large quantity of marijuana could be purchased from the Rhoades. Sylvester had rejected the first offer of marijuana by the Rhoades because it was of insufficient quality. This led them to seek more and better marijuana from appellant Emmerling's home at Fairfield Bay and from another source in Texarkana. Sylvester ultimately helped place the assembled marijuana in some 24 bags in the Rhoades' home. On the pretext of leaving to obtain the purchase money from his car, Sylvester moved his to the front door of Rhoades' home and raised the trunk lid, thus signaling an assembled surveillance team of officers to approach the home. Sylvester then entered again and announced he was a police officer and that the appellants were under arrest for possession of marijuana. No warrant for the arrest or search or seizure had been issued.

1. Warrantless seizure.

In Lewis v. United States, supra, the undercover police officer, as in this case, had been invited into the defendants' home for the purpose of purchasing narcotics, and the defendants contended the intrusion violated the Fourth Amendment to the United States Constitution. There, no warrant had been issued as in this case, but there is an important factual distinction between the cases. In Lewis, no contraband was seized. Rather, marijuana was purchased by the undercover police officer and taken away from defendants' home. The arrest occurred later.

The contention of the defendant in the Lewis case was that the entry upon his premises was obtained by fraud and that thus the marijuana removed from his premises should not have been introduced into evidence. The United States Supreme Court rejected that contention and stated:

Without question, the home is accorded the full range of Fourth Amendment protections. See Amos v. United States, 255 U.S. 313, (41 S.Ct. 266, 65 L.Ed. 654) (1921); Harris v. United States, 331 U.S. 145, 151, n.15 (67 S.Ct. 1098, 1102, 91 L.Ed. 1399) (1947). But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. (385 U.S. at pg. 211, 87 S.Ct. at pg. 427).

Thus, under the facts of the Lewis case the protection of the Fourth Amendment was held to have been forfeited by the defendant.

Certainly the principle behind the Lewis decision is broad enough to apply here. We have found it thus applied in one other jurisdiction. In the case of Patterson v. People, 168 Colo. 417, 451 P.2d 445 (1969), there was a seizure of stolen goods by an undercover sheriff's officer who was present in the home of the defendant under the guise of being a prospective purchaser of the stolen goods. The Colorado Supreme Court cited the Lewis case and the language quoted above for the proposition that "when one opens his home to the transaction of business and invites another to come in and trade with him," he loses his right to privacy which would otherwise be protected by the Fourth Amendment. See also, People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971).

With respect to this point, the appellants have cited a number of other cases dealing with search and seizure. For example, they have cited Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and its progeny for the proposition that a warrantless search may not be conducted absent exigent circumstances, and for the proposition that the "plain view doctrine" does not apply in a case such as this one. They have also cited Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), for the point that an arrest incident to which evidence theretofore known to be present at the place of arrest does not authorize a warrantless search and seizure, and the most recent Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which dealt with a warrantless entrance into a suspect's home to make a routine felony arrest absent exigent circumstances. We under stand the point the appellants seek to make with these citations, and we under stand and share the reluctance of the United States Supreme Court to permit searches and seizures in violation of the privacies guaranteed by the Fourth Amendment. It is enough, however, to say here that none of these cases involved the exception created by the Lewis case which was based upon an invited entrance for the purpose of a transaction involving contraband, and thus a waiver of Fourth Amendment rights. We hasten to point out that we do not believe the United States Supreme Court intended in the Lewis case to condone just any action which might be taken by law enforcement officials who gain entry by deceit for the purpose of conducting a contraband transaction. Their actions must be reasonable under the circumstances. The opinion in the Lewis case states at least one limitation, i. e., that an invited entry does not authorize "a general search for incriminating material." (385 U.S. at 211, 87 S.Ct. at 427). We can readily imagine many other limitations, and thus we emphasize each case involving the extension of the Lewis doctrine, as by the Colorado Court and here, must depend upon the facts showing reasonableness or unreasonableness of the activities of the police.

2. Entrapment.

For the proposition that the appellants have been entrapped, they cite United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978), and United States v. Hastings, 447 F.Supp. 534 (E.D. Ark. 1977). The Twigg case is inapplicable because there it was clear that government authorities supplied the suspect the most difficult ingredient to obtain for the manufacture of an illegal drug as well as a large percentage of necessary laboratory equipment, and they even supplied the place in which the laboratory was set up. The conduct of the police was labeled "outrageous" by the court. The same label was applied in the Hastings case where a government informant actually stole an item for the purpose of selling it to the defendants who were then charged with purchasing stolen property. In the case before us there has been no such "outrageous" conduct. Rather, this seems to have been a routine undercover operation. The initial inducement to commit the offense charged did not come from government authorities. It is obvious the appellants were well predisposed to obtain and sell marijuana to the officer. Merely affording one an opportunity to do that which he is otherwise ready, willing and able to do is not entrapment. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978).

3. Evidence obtained by fraud and deceit.

This point is closely related to the first two. Here the appellants contend their motion to suppress the evidence obtained by fraud and deceit should have been granted. The appellants' basic citation is Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). That case was distinguished by the Supreme Court in the Lewis opinion because it involved not only entry by deceit, but a subsequent...