State v. Sullivan
Decision Date | 16 May 2002 |
Docket Number | No. CR 99-1140.,CR 99-1140. |
Citation | 74 S.W.3d 215,348 Ark. 647 |
Parties | STATE of Arkansas v. Kenneth Andrew SULLIVAN. |
Court | Arkansas Supreme Court |
Mark Pryor, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., and Brad Newman, Ass't Att'y Gen., Little Rock, for appellant.
John Wesley Hall, Jr., and Kathy L. Hall, Little Rock; David M. Siegel, Boston, MA; and F.N. "Buddy" Troxell, Conway, for appellee.
This is a pretextual-arrest case. Kenneth Andrew Sullivan was arrested in 1998 in Conway. He was charged with, among other offenses, possession of methamphetamine with intent to deliver. The facts leading up to his arrest were set out in State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000) (Sullivan I). Sullivan moved to suppress the fruits of the arrest, including the methamphetamine, and the trial court granted his motion. We again are called upon to review the propriety of the trial court's decision. We affirm that decision on state law grounds.
The procedural history of this case follows. In Sullivan I, we affirmed the trial court's decision to suppress on the basis that the arresting officer's actions were pretextual. In the original briefing of the issues, neither party cited Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), to this court. After our decision in Sullivan I, the State petitioned for rehearing, arguing that we did not follow the Supreme Court's decision in Whren. We denied the petition but issued a supplemental opinion addressing the Whren case. See State v. Sullivan, 340 Ark. 318-A, 16 S.W.3d 551 (2000) (Supplemental Opinion on Denial of Rehearing) (Sullivan II). In Sullivan II, we rejected the rationale of Whren and stated that we were free to grant Sullivan more protection under the United States Constitution than the federal courts have seen fit to provide.
After our decision in Sullivan II, the State petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the petition. In Arkansas v. Sullivan, 532 U.S. 769, 121 S.Ct. 1876, 149 L.Ed.2d 994 (2001) (per curiam), the Supreme Court reversed our decision in Sullivan II. The Court noted that we could grant Sullivan more protection under state law, but that we could not do so under the federal constitution. The Court said:
The Arkansas Supreme Court's alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court's own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). There, we observed that the Oregon Supreme Court's statement that it could "`interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court'" was "not the law and surely must be inadvertent error." Id., at 719, n. 4, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570. We reiterated in Hass that while "a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards," it "may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." Id., at 719, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570.
Arkansas v. Sullivan, 532 U.S. at 772, 121 S.Ct. 1876 (emphasis in original). The United States Supreme Court remanded the case to us for further proceedings. Following the remand, we granted Sullivan's motion to rebrief the issues in this case. We now take up the State's appeal of the trial court's suppression decision for the third time.
Initially, we note that under federal law there is no longer a pretext inquiry. In Whren v. United States, supra, the United States Supreme Court foreclosed such inquiries into a police officer's subjective motivation, holding that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Whren, 517 U.S. at 813, 116 S.Ct. 1769. So long as a police officer's actions are objectively reasonable, there is no Fourth Amendment violation even if the police officer's actions are wholly pretextual. Under Whren, for example, a law enforcement officer may use any violation of traffic laws to investigate an entirely unrelated criminal offense, regardless of whether the officer has probable cause or even reasonable suspicion that the unrelated offense has been committed. Under the Fourth Amendment, this is acceptable police conduct. Further, the Whren Court took pains to point out that the opinion did not announce a departure from its prior interpretations of the Fourth Amendment, citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 494, 38 L.Ed.2d 427 (1973), Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), and United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983).
In various search-and-seizure contexts, this court has viewed the protections of Article 2, section 15, of the Arkansas Constitution to be parallel to those provided by the Fourth Amendment. See, e.g., Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997) ( ); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). In Stout, for example, we said:
Of course, we could hold that the Arkansas Constitution provides greater protection against unreasonable searches than does the Constitution of the United States, but we see no reason to do so. The wording of each document is comparable, and through the years, in construing this part of the Arkansas Constitution we have followed the Supreme Court cases.... [W]e choose to continue to interpret "unreasonable search" in Article 2, Section 15 of the Constitution of Arkansas in the same manner the Supreme Court interprets the Fourth Amendment to the Constitution of the United States.
Stout, 320 Ark. at 557-58, 898 S.W.2d at 460. In Stout, we declined to depart from federal interpretation in the vehicular search-incident-to-arrest context, noting particularly that we had followed the United States Supreme Court's lead in this area: "Belton has provided a practical and workable rule for fourteen years, and we have followed it on many occasions." Id.
Nonetheless, in other search-and-seizure contexts, we have not been in lock-step with federal Fourth Amendment interpretation. This fact is illustrated by our recent decision in Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). In Griffin, we relied on the Arkansas Constitution in declaring a nighttime incursion upon the defendant's curtilage to be an illegal exercise of law enforcement authority. In Griffin, we said:
[W]hile we lack authority to extend the protections of the Fourth Amendment beyond the holdings of the United States Supreme Court, we do have the authority to impose greater restrictions on police activities in our state based upon our own state law than those the Supreme Court holds to be necessary based upon federal constitutional standards.
Griffin, 347 Ark. at 792, 67 S.W.3d at 584 (citing Arkansas v. Sullivan, supra). After setting forth the historical underpinnings of our decision, we held that Article 2, section 15, of the Arkansas Constitution prohibited the police conduct at issue in that case. The Griffin decision was in keeping with our Rule of Criminal Procedure 13.2(c), which forbids nighttime execution of a search warrant except in limited circumstances. Rule 13.2(c) is another instance in which this court has granted more protection under Arkansas law than the federal courts provide in interpreting the Fourth Amendment. In sum, there are occasions and contexts in which federal Fourth Amendment interpretation provides adequate protections against unreasonable law enforcement conduct; however, there are also occasions when this court will provide more protection under the Arkansas Constitution than that provided by the federal courts.
One pivotal inquiry in this regard, as highlighted by Stout, supra, is whether this court has traditionally viewed an issue differently than the federal courts. See also State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 814-15 (1986) ( ). This case presents such a situation. Hence, we begin our analysis of the specific issue presented by this case by noting that this court has traditionally treated pretextual arrests differently than have the federal courts. Unlike the United States Supreme Court, this court has considered pretextual arrests to be unreasonable for over twenty years.1 Our first case expressing that view was Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979). In Smith, officers suspected the defendant of possessing stolen goods, but their suspicions did not rise to the level of probable cause. Thus, they located two entirely unrelated arrest warrants for the defendant and proceeded to use them to get into his home. Once inside, they searched for the stolen merchandise. We held in Smith that this was unreasonable police conduct and suppressed the fruits of the search.
In Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981), we again indicated that pretext was an issue that concerned this court. In Brewer, law enforcement officers arrested the defendant for participating in a burglary with the intention to question him about an unrelated homicide. They obtained an incriminating statement from the defendant regarding the homicide and charged him with that homicide, but never charged him with the burglary. The defendant challenged the admissibility of the pretextually obtained statement. We held that the statement was admissible, but only because the taint of the illegal pretextual arrest dissipated when the defendant's girlfriend told the defendant that ...
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