Sossamon v. State

2019 Ark. App. 262

576 S.W.3d 520

Karen SOSSAMON, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-930

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered May 8, 2019

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't Att'y Gen., for appellee.

PHILLIP T. WHITEAKER, Judge

Appellant Karen Sossamon was charged with three counts of possession of controlled substances with intent to deliver, one count of possession of drug paraphernalia, and one count of obstructing governmental operations. Before trial, Sossamon filed a motion to suppress the evidence. The circuit court held a hearing on her suppression motion and denied it. A Sevier County jury subsequently convicted Sossamon on all five counts and sentenced her to a total of seventy-three years and one month in the Arkansas Department of Correction. On appeal, Sossamon does not challenge the sufficiency of the evidence supporting her convictions; rather, she argues that the circuit court erred in denying her motion to suppress. We find merit to her arguments, and we reverse and remand.

I. Background Facts

We begin by examining the facts underlying Sossamon's motion.¹ Sossamon was pulled over for speeding by officer Justin Gentry at approximately 2:30 a.m.² She was driving a vehicle that belonged to Selah Dyer, who was a passenger in the back seat. A third woman, Angela Kush, was the front-seat passenger. After initiating the stop, Gentry called for backup.

Gentry approached the driver's-side window and asked Sossamon for her name and driver's license. Sossamon provided a false name, "Tonya Adams," and a birth date and told Gentry that she did not have her driver's license. Gentry ran a search on the name "Tonya Adams" and the birth date Sossamon gave him, and they came back to a valid license; he was thus unaware that Sossamon had provided false information and believed he was dealing with Tonya Adams. Gentry then obtained identification from the other two passengers in the car. He ran Dyer's and Kush's information through the system and discovered that Dyer had a felony drug history on her criminal record. Gentry asked Sossamon, Dyer, and Kush what they were doing and where they were going. They responded that they were on their way to the casino. Gentry was suspicious of this answer because, in his experience, people were generally leaving the casino at 2:30 a.m., not going to the casino, and Kush was wearing pajama bottoms.

While Gentry was gathering information, Dyer told Gentry that she was the owner of the vehicle. Gentry asked Dyer if she had anything illegal in the vehicle, and she replied that she did not. He then asked Dyer if she would consent to a search of the vehicle, and she agreed. Gentry asked Sossamon and Kush to step out of the vehicle and advised them that Dyer had given consent to search. Sossamon immediately became agitated and yelled that she did not want Gentry searching her bags. Gentry told her that she was free to tell him which bags belonged to her, and he would remove them from the car for her. Sossamon pointed out two bags in the back seat, and Gentry allowed her to retrieve them.³

After Sossamon got her bags out of the car, Gentry began his search of Dyer's car and its contents. He searched a purse in the back seat that contained a makeup bag. Inside the makeup bag, Gentry found what he believed was some type of pipe inside a "bunch of wadded up tissue paper." In addition to the pipe, he found a bag containing a substance he believed to be methamphetamine. Gentry asked all three women who owned the purse, and Dyer answered that it was hers. Gentry found nothing further in his search of Dyer's car or its contents.

Because of his discovery of the drugs inside Dyer's purse within her vehicle, Gentry called his sergeant and asked if he was allowed to search the bags that previously had been taken out of the car. The sergeant advised him that he had probable cause to search the other bags that had already been removed from the car. Gentry went to Sossamon and told her what he had found in the car, and he asked her if she had anything illegal in her bags that she had taken out of the car. Sossamon replied that she did not, and Gentry advised her that he was going to search them anyway on the basis of what he had found in the car. Gentry then proceeded to search Sossamon's bags and discovered marijuana, hydrocodone, methamphetamine, scales, baggies, and other paraphernalia. At the time of his search of Sossamon's bags, Gentry was still unaware that the name and information that she had previously provided were false.⁴

Sossamon filed a motion to suppress the drugs and paraphernalia seized from her bags, arguing that Gentry lacked probable cause to conduct the warrantless search of her possessions. After a hearing, the court denied Sossamon's motion, stating from the bench that "as soon as the officer found contraband in that car, he had probable cause to proceed and search the other items that were within reach of any of the other occupants, and they did not have an unreasonable right to deny their search in violation of the Fourth Amendment." The matter subsequently proceeded to trial, and as noted above, Sossamon was convicted on all counts. She timely appealed.

II. Standard of Review

In reviewing a circuit court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court's findings. Jackson v. State , 2013 Ark. 201, at 5–6, 427 S.W.3d 607, 611–12 ; Menne v. State , 2012 Ark. 37, 386 S.W.3d 451. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Jackson , supra.

III. Discussion

On appeal, Sossamon argues that the warrantless search of her bags was unconstitutional, asserting that the owner's consent to search the vehicle did not include her bags, nor did the police have probable cause to search her bags. We therefore examine the law surrounding warrantless searches.

The United States Supreme Court has held that a warrantless search or seizure is per se unreasonable unless it falls under a recognized exception to the warrant requirement. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). We have followed this precedent in our own opinions. Tiller v. State , 2014 Ark. App. 431, at 7, 439 S.W.3d 705, 710. Here, Officer Gentry's search of Sossamon's bags was without a warrant and was thus per se unreasonable unless it fell under a recognized exception to the warrant requirement. Our court has stated that the burden of proof is on the State to justify the search. Mays v. State , 76 Ark. App. 169, 61 S.W.3d 919 (2001). On appeal, we make an independent determination based on the totality of the circumstances to ascertain whether the State has met its burden of justifying the warrantless search. Henley v. State , 95 Ark. App. 108, 111, 234 S.W.3d 316, 319 (2006). With these standards in mind, we now consider whether this warrantless search falls under a recognized exception.

A. Consent

We recognize the consent of the subject of the search as an exception to the warrant requirement. See Lobania v. State , 60 Ark. App. 135, 137, 959 S.W.2d 72, 74 (1998) ("Consent is a justification for a warrantless search."); see also Ark. R. Crim. P. 11.1(a) ("An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search."). The State must prove by clear and positive testimony that consent to search was freely and voluntarily given. Griffin v. State , 347 Ark. 788, 67 S.W.3d 582 (2002).

In this case, Dyer undisputedly gave her consent to search the vehicle that belonged to her. Sossamon, however, undisputedly refused to grant—and indeed withheld—her consent to the search of her personal belongings. Gentry clearly understood that Sossamon was withholding her consent to a search of her bags, and he allowed Sossamon to remove her bags from the vehicle because of her refusal to consent. The State therefore clearly failed to prove that Sossamon consented to a search of her possessions.

We must then consider whether Dyer's consent to the search of the vehicle somehow extended to Sossamon's belongings. This court has noted that "where there are no limits placed on the search [of a vehicle], the consent to search includes any containers found inside the vehicle." Flores v. State , 87 Ark. App. 327, 334, 194 S.W.3d 207, 212 (2004). This does not mean, however, that a suspect cannot place limits on consent to search. See Florida v. Jimeno , 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ("A suspect may of course delimit as he chooses the scope of the search to which he consents."). Our standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect. Id. at 251, 111 S.Ct. 1801 ; see also Miller v. State , 342 Ark. 213, 220, 27 S.W.3d 427, 431 (2000). Applying this standard to the facts herein, we hold that Dyer's consent did not extend to a search of Sossamon's personal belongings.

Here, Dyer provided consent to search her car, but Sossamon withheld consent to search her personal belongings that had already been removed from the vehicle at the time of the initial search. Clearly, Sossamon had the right to withhold consent to a search of her belongings. A passenger in another's vehicle has standing to contest the search of his or her own personal belongings inside...