Virgil v. State
| Decision Date | 20 May 2020 |
| Docket Number | No. CR-19-780,CR-19-780 |
| Citation | 603 S.W.3d 603,2020 Ark. App. 314 |
| Parties | Rufus Lamont VIRGIL, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Court of Appeals |
Hancock Law Firm, by: Sharon Kiel, Little Rock, for appellant.
Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Sr. Ass't Att'y Gen., for appellee.
Does this court treat one of Arkansans’ state constitutional rights as seriously as the Arkansas Supreme Court has for the past fifteen plus years? It does, as it must, and today we remind all who are interested that Arkansans’ right to be free from an unreasonable search of their homes is alive, well, and robust. Specifically, we reaffirm the bright-line rule that law enforcement must inform citizens of their right to refuse a warrantless search of their homes before an officer may enter, not after the warrantless entry has already occurred, as happened in this case.
This case ended in the circuit court with Rufus Virgil's conviction for failing to comply with sex-offender registration-and-reporting requirements. Ark. Code Ann. § 12-12-904 (Supp. 2019). It began, in an important sense, when the Conway Police Department engaged a young woman named Dejah Felton at her apartment on 4 January 2018. On that day, some plain-clothes and uniformed police officers knocked on Felton's door and immediately told her they wanted to talk with her. The knocking officer asked if they could come inside and talk. Felton let the police inside, although the split-second decision she made with multiple officers at the door's threshold cannot be termed a hearty invitation. The legality of the "knock-and-talk" with Felton is at issue in this appeal because it relates to Virgil's conviction for violating reporting-and-registration requirements, of which more later.
When properly performed, a knock-and-talk is a consensual investigative technique police use at the home of either a suspect or an individual with information about an investigation; no probable cause or a warrant is required to initiate a knock-and-talk. See State v. Brown , 356 Ark. 460, 466, 156 S.W.3d 722, 726 (2004) ( the procedure). The legality of a knock-and-talk is at issue here because Conway Police found documents with Rufus Virgil's name printed on them as well as men's personal items and clothing when they searched Felton's apartment. The State says these items support its charge that Virgil violated certain sex-offender registration-and-reporting requirements. Before the jury trial commenced, Virgil sought to suppress the listed items (and other evidence) that the Conway Police had obtained when they searched Felton's apartment.1
Vigil claims the way in which the knock-and-talk was done in this case violated his rights under the Fourth Amendment to the United States Constitution and article II, section 15 of the Arkansas Constitution. For the reasons discussed below, we hold that the police violated Virgil's well-established right to privacy under the Arkansas Constitution. In particular, the knock-and-talk as performed in this case was an unreasonable search that is prohibited by our state constitution.
An important piece of evidence that the State introduced against Virgil during his jury trial on the sex-offender charge was a stipulation from the prior suppression hearing. During the hearing, the parties stipulated that he resided at 1618 Westlake Drive, No. 1907, on 4 January 2018. The stipulation gave Virgil standing to challenge the knock-and-talk and the fruits of that effort. Neither Virgil, nor the State, nor the court had any issue accepting and using the stipulation during the suppression hearing. Later, however, the State and Virgil disagreed on whether the residency stipulation could be used when the State sought to try and convict him on the sex-offender charge. Over Virgil's objection, the circuit court agreed with the State and allowed the jury to hear that Virgil had previously stipulated that he resided at a different address than the one he had given as a registered sex offender.
Virgil was convicted.
Regarding the stipulation's use during the jury trial, we hold that the circuit court erred when it allowed the State to use the suppression-hearing stipulation during the trial. A case decided by the Supreme Court of the United States makes the point for us. In Simmons v. United States , 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court held that "when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." But that is what happened during Virgil's jury trial over his timely objection.
What follows is a summary of the evidence received during the suppression hearing, which includes audio-visual footage that an officer's "bodycam" recorded.
An anonymous tipster contacted Conway's "Text a Tip Program" and alerted the police to possible illegal drug activity at an apartment located at 1619 Westlake Drive, No. 1907, Conway, Arkansas. That address was an apartment leased in the name of Virgil's girlfriend, Felton. Around 10:00 a.m. on 4 January 2018, Conway Police investigator Jeron Smith, who was dressed in civilian clothes, went to Felton's apartment with other uniformed and nonuniformed law enforcement officers. Felton answered the door shortly after the police knocked.
Bodycam footage played for the court during the suppression hearing showed that Investigator Smith stated, Felton replied, "Uh-huh." Smith then asked, "Hey, could I come in and talk to you real quick?" Felton said, "Um-hum." Smith then immediately stepped across the threshold into the apartment; one or more officers followed.
Investigator Smith also said the following during the hearing:
The investigator's testimony from the stand is accurate enough relative to the video. The point that it misses, which the video makes clear, is that the "here's why we are here" and the "consent to search" issue all happened after the officers were inside the apartment. In fact, the officers were inside a full three or four minutes before a consent-to-search form was presented to Felton.
But we get ahead of ourselves.
The bodycam video shows that the officers asked if anyone else was in the apartment. Felton told the officers that her friend Lisa was present in the apartment; she was sleeping in the other room. An officer asked Felton about the odor of marijuana and said, Felton said her friend had used it and indicated there was a small amount in her home. Investigator Smith held out what is presumably the consent form and stated:
Felton took the piece of paper and responded, "Can I like call my momma or something?" Investigator Smith agreed that she could call her mother, and then she stepped outside. (For accuracy's sake, it seems from the video that she may have called her mother while inside the apartment, not outside of it.) Later in the video, a uniformed officer can be seen holding a piece of paper that appears to be the consent form.
After a discussion about another occupant of the apartment, the conversation with Felton returned to consent. The officer stated, Felton's response is not audible on the recording. The officer then said:
You can not consent today. What we have to do then is—we didn't want to do this but if we have to—clear the residence of the person and (inaudible) I would go type a search warrant and come back and—we always—.
The officer told Felton that the police were not there for "a user amounts of marijuana" but "just to make sure no one is selling marijuana." The officer told Felton,
After having been inside Felton's apartment for ten minutes, Investigator Smith offered to call Felton's employer, Popeye's Chicken. On the video, Investigator Smith can be heard saying, The rest of the conversation is inaudible.
Having been engaged by the police for approximately four to five minutes, Felton apparently signed a written consent-to-search form, which states:
I, Dejah Felton, having been informed of my constitutional right not to give consent to a search made of the premises ... without a search warrant and of my right to refuse to consent to such a search, I hereby authorize [Conway Police officers] to conduct a complete search of my premises/auto 1618 Westlake #1907.
The officers...
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Abernathy v. State
..., 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The same protection issues from the Arkansas Constitution. See Virgil v. State , 2020 Ark. App. 314, 603 S.W.3d 603. A warrantless entry into a private residence is presumptively unreasonable under the Fourth Amendment and the correspon......