Long v. State, CA CR 07-674 (Ark. App. 3/12/2008)

Page 1

James LONG, Appellant v. STATE of Arkansas, Appellee

CA CR 07-674

Court of Appeals of Arkansas

Division IV

Opinion Delivered March 12, 2008

Appeal from the Saline County Circuit Court, [No. CR-2005-405-A3], Honorable Grisham A. Phillips, Circuit Judge.

Affirmed.

SARAH J. HEFFLEY, Judge.

Appellant, James Long, entered a plea of guilty to possession of marijuana with intent to deliver, reserving his right to appeal the denial of his motion to suppress the physical evidence against him. On appeal, appellant argues that the search of his home was unlawful and violated his Fourth Amendment rights. We affirm.

In his motion to suppress, filed May 30, 2006, appellant argued that police officers had searched his home without his consent and in the absence of any exigent circumstances that would give rise to probable cause or justify a warrantless search. Appellant also argued that the fruits of a subsequent search, for which the police obtained a warrant based in part on evidence found during the initial unlawful entry, should also be suppressed. A hearing on the matter was held on June 5, 2006.

The testimony presented at the suppression hearing revealed the following chain of events. Officer Lance Smith of the Benton Police Department testified that on April 23, 2005, he was approached by appellant in the parking lot of the police station. Appellant, who appeared to be upset, told Smith that two Hispanic males had broken into his house, threatened him with guns, and demanded all of his money. When appellant's pit bull came into the room, one of the males shot the dog in the head, and the men then fled the scene in a tan Ford Explorer. Smith observed appellant's girlfriend, Angelina Espino, in the passenger seat of appellant's vehicle and a dog with an obvious bullet hole on its face. Smith told appellant that he needed to go to appellant' s home and secure the crime scene; appellant told Smith that he had to get his dog to a veterinary hospital in Maumelle. Smith then asked if the door to appellant's home was locked, and appellant responded that it was. Appellant obtained a house key from Espino and gave the key to Smith. According to Smith, appellant gave him permission to enter the house and secure it, and Smith told appellant to call him as soon as he had taken care of his dog.

Smith called his lieutenant, Scott Hodges, who met him at appellant's residence. Smith noted that there was a camera mounted above the front door. The officers entered the house with their guns drawn, as there was the possibility that the robbers had returned. Inside the house, Smith noticed a strong odor of marijuana. In one bedroom, Smith observed "a lot of residue that had like a square shaped around it like something had been removed, and the residue was all around it." Also in the bedroom, Smith saw marijuana stems, an ashtray full of marijuana stems and "blunts," or hand-rolled marijuana cigarettes, and a set of digital scales. The officers also saw numerous "blunts" in the living room. After the house was secured, another officer who had arrived on the scene began to photograph the inside of the home. Appellant's parents also arrived at the scene. One of the officers then left the scene to secure a search warrant while the other officers waited outside.

Officer Patrick Baker testified that he was contacted by Smith regarding a residential burglary and aggravated robbery on April 23, 2005. Baker testified that after Smith and Hodges had secured the house, he began taking pictures and looking for a shell casing. Baker stated that Smith pointed out a marijuana cigarette that was in plain view, and Smith told Baker he had seen other vegetation and stems throughout the house. Baker testified that he continued to process the scene while Smith began collecting the marijuana cigarettes and other drug evidence. Baker then found a pan of soil and what he believed were marijuana seeds in the kitchen, and at that point he stopped processing the scene and left to obtain a search warrant. Baker testified that appellant's parents arrived at the scene within twenty to thirty minutes of his arrival.

Appellant testified that he had gone to the police department because his dog had been shot and he was trying to locate a vet. Appellant testified that he asked Smith where he could take his dog, and Smith told him there was a veterinary hospital in Maumelle. Appellant stated that Smith asked where his house was and asked if appellant had a key. Smith then took the house key from Espino. According to appellant, he told Smith that he did not need to go into the house and that no one was in the house. Appellant also testified that while he was in Maumelle, Smith called him from appellant's father's cell phone and said that he needed written permission to go into appellant's house. Appellant testified that he told Smith that "when I get done with my dog here in Maumelle, then I'll come down here and let you in, but otherwise, no." Appellant contended that Smith never told him he had the right to not consent and that he had never given Smith permission to enter the house.

Espino testified and corroborated appellant's version of events. Specifically, she testified that Smith told them he needed to secure the scene and took the house key out of her hand. She also testified that appellant had told Smith he did not see the need in Smith going into the house, and after Smith called appellant at the veterinary hospital, appellant told Smith not to go into the house.

Randall Long, appellant's father, testified that he and his wife were informed of the break-in by appellant, and they immediately went to appellant's house. Long testified that Smith was already at the house when they arrived. Long stated that Smith told him the police had received an anonymous call that marijuana was being sold out of the house. According to Long, Smith then called appellant on his own cell phone, not Long's cell phone, and Long heard Smith tell appellant that he needed written permission to go into the house. Long testified that Smith waited for approximately five to fifteen minutes, then Smith stated "I'm going in anyway" and proceeded to enter the house.

Smith was recalled as a witness and explained that while Baker was processing the scene, he was informed by dispatch that an anonymous caller had called and stated there were marijuana, pills, and money in the attic of the home. Smith testified that he did not tell appellant that he needed written consent to enter the house.

In an order filed February 5, 2007, the court denied appellant's motion to suppress. In its order the court found:

[T]he officer either requested a key from the Defendant(s) or he was offered a key by one of the Defendants. Either way, he was in receipt of a key to the Defendant's residence. Any reasonable person, including a reasonable...