Lewis Order

7/23/2019 Lewis Order

http://slidepdf.com/reader/full/lewis-order 1/29

IN

THE

CIRCUIT

COURT

OF

PULASKI

COUNTY

ARKANSAS

FOURTH

DIVISION

STATE

OF

ARKANSAS

VS.

ARRON

LEWIS

PLAINTIFF

cR 2014-3928

DEFENDANT

ORDER

Comes

now

for

consideration

the

pleadings

argued

at

the

omnibus

hearing

held

November

16 2Ol5 and

based

upon

a review

of

the

case

file

the

pleadings

of

both

parties

the

arguments

submitted

to

this

Court

by

brief

and

all

other

matters

considered

the

Court

DOTH

FIND:

The

Defendant

is

charged

with capital

murder

kidnapping

and

possession

of

firearms

by

certain

persons.

The

defense

has

filed

multiple

motions

and

petitions.

Some

of

these

have

already

been

disposed

of by

an

Order

entered

by

this

Court

on

october

6 2015.

The

following

motions

were

sgmmarily

granted

withdrawn

by

the

Defendant

or

deferred

by

the

Court:

The

State has

indicated that they do not intend

to

introduce

physical

evidence

from

a

Fuji

camera.

This

motion

is

hereby

granted.

ELECTRONICALLY FILEPulaski County Circuit Court

Larry Crane, Circuit/County Clerk

2015-Dec-09 16:48:1060CR-14-3928

C06D04 : 29 Pages



Motion

to

Suppress

Phvsical

Evidence

from

Faultv

Warrant

for

Black

IBM

LaDtoI)

The

State

has

indicated

that

they

do

not

intend

to

introduce

physical

evidence

from

the

black

IBM

laptop.

This

motion

is

hereby

granted'

The

parties

agreed

at

omnibus

that

this

Motion

is currently

premature.

The

Court

hereby

defers

ruling

on

this

Motion,

as

it

is

not

yet ripe

for

a

ruling'

The

State

has

indicated

that

they

will

amend

the

criminal

information

filed

in the

case

to

add

the

necessary

language:

under

circumstances

manifesting

extreme

indifference

to

the

value

of

human

life.

The

Motion

is

hereby

granted'

Motion

in

Limine

to

Exclude

Testimonv

about

cement

Dust

Pursuant

to

D,Iu',e

The

State

has

indicated

that

they

do

not

intend

to

introduce

expert

testimony

about

cement

dust.

This

Motion

is therefore

granted'

The

State

has

indicated

that

they

do

not

intend

to

introduce

expert

testimony

about

cell

phone

tower

pings.

This

Motion

is

therefore

granted'



Motion

in Limine

to

Exclude

Emails

and

Text

Messaees

Allesedlv

Sent

bv

Arron

Lewis

The State

has been

put

on

notice that

any

evidence

of

this

nature

will

require

authentication

pursuant

to

Rule 901

of

the

Arkansas

Rules

of

Evidence.

Defendant

will

inform

this

Court

the

morning

of trial

whether

they

object

to specific

exhibits

of this

nature

in

the State's

exhibit

list.

The State

will

be

given

an

opportunity

to

lay

a

foundation

for

the

introduction

of

any

disputed

statement

prior

to

trial,

and

this

Court

will make

a ruling.

Motion

to Return

Watch Seized

from

Defendant

The Defendant

argues

that

the

watch

in

question was

seized

illegally

and

that

it

should

be

returned

to the

Defendant.

The State

has

responded

that

it has

not made

a

determination

regarding

whether the

watch will

be used

as

evidence.

They

request

that the

Court

postpone any

order

to return

this

item

until

after

trial

under

Ark.

R.

Crim.

Pro.

15.2(d).

Absent

any showing

that

this

item

is contraband,

the

Court

agrees

that

the

Defendant

is

eventually

entitled

its

retum.

The Court

hereby defers

ruling

on this

Motion

at

this

time

and

will

re-visit

the

matter

after

evidence

has

been

presented

in

the

case.

Motion

to

Return

Gatewav

Laptop

Seized

from

Defendant

The

Court

is

presented

with the

same

issues

and

arguments

as

the

watch

(discussed

immediately

above).

The

Court

will

similarly

defer

ruling

on

this

Motion at

this

time

and

will

re-

visit

the

matter after evidence

has been presented

in

the

case.



Motion

to

Return

iPad Seized

from

Defendant

The

Court

is

presented

with

the

same

issues

and

arguments

as

the

watch

and

Gateway

laptop

(discussed immediately

above).

The Court

will

similarly

defer

ruling

on

this

Motion

at

this

time

and

will

re-visit

the

matter

after

evidence

has

been

presented in

the

case.

The

Court's

ruling

on

the

following

Motions

are

based

on the

evidence

presented

at

omnibus,

the

argument

briefs

submitted

by

the

parties, the

files

and

records

of

the case,

and

all

other

matters

considered:

The

Defendant

seeks

to

have

this

Court

suppress

any evidence

obtained

by

subpoenas

issued

in this

case

to

phone and

IT

companies.

Investigator

Jeff

Allison

of

the

Pulaski

County

Sheriff

s

Department

-

Criminal

Investigative

Division

testified

at

the omnibus

hearing

that,

after

the

disappearance

of

Beverly

Carter

had been

reported,

they

made

an

exigent

circumstance

request

to

AT&T

to

procure her

cell

phone and

SMS

data

records.

Once

they

had

access

to

those

records,

they

noticed

that

the

victim

had

recently

been

in

frequent

contact

-

both

phone calls

and

text

messages

-

with

a

phone number

with

a

New

York

area

code.

Having

access

to

the

victim's

Apple

iCloud

account,

they

noticed

that

this

phone number

was one

of the

few

in

her call

history

not

identified

with

a known

associate.

The

investigators

discovered

that

this

same

phone number

was

written

on an

envelope

in

the

victim's

car.

one

of

the

investigators

called

the

number

and

discovered

it

was a'ospoof

number

associated

with

a

Google

app

called

TextMe.

They

then,

with

the

aid

of

prosecutors,

made

an

exigent

circumstances

request

to

Google

to

obtain

the

call

log of

the

TextMe

number.

They

were

able

to

thereby

determine

that

the

phone

number

was

created

by

an

account

of

the

Defendant's

wife,

Crystal

Lowery'



The

Defendant

has

alleged

that

the

information

received

by

the

investigators

in this

manner

should

be

suppressed

as

an

oveffeach

of

the

prosecutor's

subpoena

power.

The

Defense

is

right

that

the

prosecutor

has

no

power

to

issue

subpoenas

in

a

criminal

investigation.

The

Court,

however,

need

not

decide

whether

this

alleged

overreach

was

illegal.

Because

even

assuming

arguendothat

the

prosecutors

improperly

allowed

the

use

of

their

subpoena

to

aid

the

police

investigation,

the

Defendant

has

no

standing

to

challenge

these

subpoenas,

and

suppression

would

not

be

the

proper remedy.

The

Defense

and

State

both

base

their

arguments

on

State

v. Hamzy,

2gg

Ark.

561

(1986), a

case

originating

out

of this

Court,

in

which

telephone

records

obtained

by prosecutorial

subpoenas such

as

the

ones

before the

Court now

were

challenged.

The

Defense

correctly

notes

that

the

Hamzy

Court

found

that

prosecutors

improperly

abused

their

subpoena

power

when

they

commanded

that

telephone

records

be

produced

for

the

police. They

omit,

however,

the

actual

holding

of

the

case.

Hamzy

held

that,

prosecutorial

misconduct

aside,

a

defendant

had

no legitimate

expectation

of

privacy in

his

telephone

records.

There

was,

therefore,

no

Fourth

Amendment

violation,

and

the

defendant

had

no

standing

to

challenge

the

introduction

of

the

records.

Id, at

565.

Finding

that

[t]he

proponent

of

a

motion

to

suppress

has

the

burden

of

establishing

that

his

own

Fourth

Amendment

rights

were

violated

by

the

challenged

search

or

seizure[,]

the

Hamzy

court

reversed

and

remanded

this

court's

decision

with

instructions

to

deny

the

motion

to

suppress'

Id,

at 565-566'

The Defendant cites

additionally to

Cook

v.

State

,

27

4

Ark-

244

(1981)

and Foster

v'

State,

285

fuk.

363

(19S5). In

Cook,

the

prosecutor

convened

a

pretrial

conference,

having

subpoenaed

witnesses,

and

questioned

many

witnesses

in

the

presence

of

each

other

and

without

the

presence

of

the defense.

The

Arkansas

Supreme

court

found

that

this

questioning

without



cross-examination

could

lead

a

recalcitrant

witness

to

a

desired

answer

in

front

of the others

and

deny

the

accused

a

fair

trial

when

they

parroted

the

previous

answer

again

during

the

trial.

Cook,

suprq

at248-249.

In

Foster,

the

prosecutor

used

their

subpoena

power

to

procure

a

witness's

presence

for

police

questioning,

arriving

at a

witness's

home

late at

night

and

telling

the

witness

that

the

prosecutor

wanted

to see

her.

The

police

proceeded

to

question

her,

and

the

prosecutor

did

not

participate

meaningfully

in

that

questioning.

Finding

that

the

prosecutor's

subpoena

was

merely

a,.guise

to

let

the offrcers

detain

her

and

interrogate

her,

the

Arkansas

Supreme

Court

held

that

this

violation directly

tainted the

statement

she

gave

to the

police

should

have been

suppressed.

Foster,

supra

at

367

-368.

Neither

of these

cases

are

analogous

to

the

facts

at

bar.

The actual

subject

matter

of

the

testimony

and

statements

in both

of

those

cases

were

influenced

by

the

prosecutorial

overreach,

to

the

extent

that

admitting

them

would

have

violated

the

respective

defendants'

right

to

a

fair

trial.

The

reliability

of

the

information

obtained

by

the

subpoenas

before

us

is

not

called

into

question by

the

actions

of

the

prosecutor.

Furthermore,

like

in

Hamzy,

the

Defendant

has

made

no

argument

that

these

subpoenas

violated

his Fourth

Amendment

rights.

This

Court

has

been

given no

law

that

can

be

read

to

support

suppression

of

the

evidence

obtained

by

them.

The

Motion

is

therefore

denied.

At

the

time

of

the

Defendant's

vehicle

accident,

Pulaski

County

Sheriff

s

Department

Lieutenant

Mark

Swaggerty

seized

a

cell

phone from

the

Defendant,

finding

it

to be

registered

to

a

phone number

they

knew

was associated

with

the

disappearance

of

the

victim.

(see

analysis

6



infra).

The

Defense

has

argued

that

the

cell

phone was

not

subject

to seizure

and

should

be

returned

to

the

Defendant

under

Ark.

R. Crim.

P.15.2,1ike

the

items

currently

being

held

and

discussed

above.

The

State

has

indicated

that

they

intend

to

use

the

cell

phone

as

evidence'

As

discussed

in

the

Court's

decision

regarding

the

Defendant's

Motion

to

Suppress

Physical

Evidence

from

Vehicle

Accident

(below),

the

cell

phone

was

lawfully

seized

pursuant

to

Ark'

R'

Crim.

pro

10.2.

The

Defendant's

Motion

to

Return

the

Cell

Phone

is, therefore,

denied.

Motion

to

Supnress

Phvsical

Evidence

from

Faultv

Warrant

and

IlIeEal

Search

at

165

Randall

Dr.

Jacksonville.

AR

In

the

course

of

the

Pulaski

County

Sheriff

Department's

investigation

into

the

disappearance

of

the

victim,

they

had

received

information

that

a slender

white

male

driving

a

black

passenger vehicle

had

been

spotted

at

the

address

where

the

victim's

car

was

found'

As

discussed

above,

once

the

investigators

had

tied

the

TextMe

number

to

the

account

of

the

co-

Defendant

Crystal

Lowery,

they

began

surveilling

her

home

at

165

Randall

Dr'

in Jacksonville'

In

the

course

of

that

investigation,

they

observed

a slender

white

male

-

later

determined

to

be

the

Defendant

-

exit

the

residence

and

leave

in a

black

passenger

vehicle'

Again,

soon

after,

the

investigators

discovered

that

the

Defendant

was

involved

in

an

accident

and

were

able

to

determine

that

the

Defendant

was

in

possession

of

the

cell

phone that

had

been

used

to

contact

the

victim

prior

to

her

disappearance.

The

Defendant

was

taken

to

the

hospital,

where

he

left

without

notice to the doctors or

medical

staff during

tests.

pulaski

County

Investigato

r

Zachary

Warren

testified

that

he

prepared

an

affidavit

to

obtain

a

search

warrant

for

the

Randall

Dr.

home.

That

warrant

was

signed

by

Pulaski

County

District

Court

Judge

Wayne

Gruber

on

Septemb

er

28,2074,

and

it

was

executed

by

the



investigators

that day.

The affidavit

prepared by

Warren

recited,

in

essence,

the

timeline

above

and

alleged

reasonable

cause

to

believe

that

THERE

IS

BEING

CONCEALED

AT

THIS

TIME

POTENTIAL

PROPERTY/EVIDENCE,

TO WIT:

l)

CLOTHING

2)

PERSONAL

PROPERTY

BELONGING

TO

THE

VICTIM

3)

SHELL

CASINGS,

2)

(sic)

PROJECTILES,

3)

FIREARMS,

4)

AMMUNITION,

5)

DNA

AND

BIOLOGICAL

EVIDENCE,6)

HUMAN

REMAINS,

T)

ANY

ELECTRONIC

EQUIPMENT

AND

MEDIA

STORAGE,

8)

ANY

ITEM

THAT

COULD

BE USED

AS

A

WEAPON

TO

INCLUDE,

KNIVES

AND

BLUNT

FORCE

OBJECTS,

9)

ANY

OTHER

PHYSICAL

EVIDENCE

AND

INSTRUMENTALITY,S

(SiC)

OF

CRIMINAL

ACTIVITY

CONTRIBUTING

TO

THE

FURTHERANCE

OF A CRIME;

TENDING

TO

DEMONSTRATE

THAT

A POTENTIAL

CRIMINAL

OFFENSE

MAY

HAVE

BEEN

COMMITTED

RELATED

TO

THE

DISAPPEARANCE

OF

BEVERLY

CARTER.

AS

THERE

EXIST

(sic)

REASONABLE

CAUSE

TO

BELIEVE

THAT

THE ABOVE

FACTS

AND

CONDITIONS

DO

EXISTS

(sic),

A

SEARCH

AND

SEIZURE

WARRANT

SHOULD

BE

ISSUED. (State's

Ex.

l)

The

language

of

the search

warrant

signed

by

Judge

Gruber

directed

law

enforcement

to

search

for

these

same

things

using

the

same

language

as

the

affidavit.

Warren

testified

that

the

search

began

at

2:35PM

and

took

approximately

one

hour.

They

discovered

and

seized

various

items,

including

the

victim's

cell

phone,

a

Gateway

laptop,

assorted

jewelry,

a

white

envelope

with

Google

numbers

written

on

it, multiple

firearms,

and

a

credit

card

reader.

The

defense

alleges

that

this

warrant

was

overbroad,

essentially

becoming

a

.,general

warrant,

giving

officers

free

reign

to

search

for

and

seize

any

item

that

could

conceivably

be

related

to

any

criminal

activity.

When asked

whether

the

warrant

allowed

the

investigators

to search

for

any

clothing

or

simply

the

victim,s

clothing,

Warren

testified

that

the

warrant

would

have

authorized

them

to

seize

any

clothing. When

asked

about shell

casings,

Warren admitted that they

had

no

reason

to

know

whether

shell

casings

would

be

present

at the

home.

He testified

that,

we

didn't

know

at

the

time.

We

didn't

know

how

the

crime

was

committed,

what

acts,

whether

it

was

by

firearm

or

any

other

weapon.

He

similarly

admitted

that

they

had

no reason

to know

whether

there

would

be

firearms,

projectiles,

or

arnmunition

at

the

home,

though

the

warrant

authorized

them

to

seize

8



any

objects

of

that

type.

When

asked

about

DNA,

biological

evidence,

human

remains,

clothing,

or

personal

property,

Warren

responded

that

the

investigators

had

no idea

at

the

time of

executing

the

warrant

whether

evidence

of

that

nature

would

be

present, or

indeed

whether

the

victim

had

ever

been

taken

to

the

residence.

He

testified

that

they

also

had

no

reason

to

know

whether

there

would

be

any

electronic

evidence

located

in the

home,

aside

from

a

phone

(that

had already

been

seized)

that

could

conceivably

allow

access

to

the aforementioned

TextMe app.

Regarding

the

directive

to search

for

any

item

that

could

be

used

as

a

weapon,

'Warren

testified

that

investigators

had

no

evidence

that

a

weapon

had

even

been

used,

and

specifically

nothing

of

the

type (knives

and

blunt

force objects) anticipated by the warrant.

Warren

testified

that

the

offrcers

interpreted

the

warrant

as

authorizing

them

to seize

anything

that

could

demonstrate

that

a

potential criminal

offense

may

have

been

committed

relating

to

the

disappearance

of

the

victim.

During

cross-examination,

the

defense

asked

the

investigator,

Is there

anything

in

that

residence

that

you couldn't

have

taken?

The

investigator

answered

that

they

would

have

been

permitted

to

seize

any

item

[a]s

it

pertains

to the

disappearance

of

Beverly

Carter.

He

admitted

that

the

investigators

seized

jewelry

without

knowledge

that

it

was

the

victim's,

that

they

took a

credit

card

reading

device

that

they

were

unsure

had

any

connection

to

the

victim's

disappearance,

and

that

they

seized

multiple

firearms

that

they

had

no

indication

were

connected

to

the

investigation.

One

of

the

basic

concepts

of

the

Fourth

Amendment

is that

searches

and

seizures

must

be

..reasonable.,,

The

Amendment

itself

states

that

no

Warrants shall

issue,

but upon probable

cause,

supported

by

Oath

or

affrrmation,

and

particularly

describing

the

place

to

be

searched

and

the

person or

things

to

be

seized.

U.S.

Const.,

amend.

IV.

The

critical

element

in

a

reasonable

search

is not

that

the

owner

of

the

property

is suspected

of

crime

but

that

there

is reasonable



cause

to

believe

that

the

specific

'things'

to

be

searched

for and

seized

are

located

on the

property

to

which

entry

is sought.

Zurcher

v. Stanford

Daily,

436 U.S.

547,

556

(1978).

Valid

warrants

to

search

property

may

be

issued

when

it

is

satisfactorily

demonstrated

to

the

magistrate

that

fruits,

instrumentalities,

or evidence

of

crime

is

located

on the

premises.

Id,

at 559.

The

Supreme

Court

has

often stressed

that

searches

deemed

necessary

should

be as

limited

as

possible.

Coolidge

v.

New

Hampshire,

403 U.S.

443,467

(1971). A

broad

warrant

lacking

specificity

is

analogous

to the

'general

warrant'

abhorred

by

the

colonists,

and

the

problem is

not that

of intrusionper

se,

but

of

a

general, exploratory

rummaging

in a

person's

belongings

. . .

tA

limited

warrant prevents

this]

by

requiring

a'particular

description' of

the

things

to be

seized

Id.

This specificity

has

long

been

central

to

Fourth

Amendment

jurisprudence.

The

requirement

that

warrants

shall

particularly

describe

the

things

to

be

seized

makes

general

searches

under

them

impossible

and

prevents

the seizure

of one

thing

under

a

warrant

describing

another.

As

to

what

is

to

be

taken,

nothing

is

left to

the

discretion

of

the officer

executing

the

warrant.

Marron

v. United

States,

275

U.S.

192,196

(1926).

The

warrant

challenged

by

the

defense

is unquestionably

a

general warrant

in direct

violation

of

the

Fourth

Amendment.

The

warrant

itself

listed

no

particular item

believed

to

be

located

at

the address

in

question

-

it

simply

listed

a

broad

category

of

things

that

might

be

considered

evidence

or

lead

to

the

discovery

ofadditional

evidence,

based

on

the

investigators'

theory that the

victim

had been

kidnapped and/or murdered'

Reviewing

Investigator

Warren's

testimony

at the

omnibus

hearing,

it

is

clear

that

the

ultimate

discretion

of

what

items

to

search

for

and

seize

was directly

left

to

the

investigators.

His

testimony

confirmed

to

this

Court

that

investigators

ultimately

could

have

seized

anything

in the

10



building

if an

argument

could

be

made

that

it

fell

within

the

nine

categories l

specified

in

the

warrant.

The

broad

discretion

granted them

is firther

demonstrated

by the

fact

that

the

investigators

seized

multiple

items

that,

though

they

may

be either

contraband

or

evidence

of

the

commission

of

some

other

crime,

have

no

evidentiary

value

in this case'2

The State

argues

that

the

search

at 165

Randall

should

be

held

valid

as

it

did

not

exceed

the

scope

of

the

search

warrant.

The

Court

would

agree

that

the

search

itself

did

not exceed

the

warrant,s

scope,

but

it is

left

to

the

Court's

imagination

what

actually

would

exceed

the

scope

of

the

warrant

executed

in

this

case,

considering

the amount

of discretion

delegated

to

(and

exercised

by)

the investigators.

Nor

is

the

Court

convinced

by the

State's

argument

that

the

Motion

to

Suppress

should

be

denied

based

on

the

Leon

good-faith

exception

to the

exclusionary

rule.

In that

case,

the

United

States

Supreme

Court

held

that

evidence

could

be

admitted

notwithstanding

the

exclusionary

rule

where

it

is shown

that

officers

executing

a

warrant

acted

in reasonable

reliance

on a search

warrant

issued

by a

detached

and

neutral

magistrate

but

ultimately

found

to

be

unsupported

by

probable

cause.

United

States

v.

Leon,

468

U.S.

897

(1984). The

State

has

asserted

in their

brief

that

the

investigators

were

acting

in reasonable

reliance

on

the

warrant,

but

the

testimony

of

the

investigators

in

question

tells

a

different

story.

Investigator

Warren

created

the

affidavit

and

the

warrant

itself,

which

mirrors

the

language

in

their

affidavit

-

typos

and

all.

To be

sure,

the

investigators

were

operating

under

the

demands

of

their

job

and

the

public

pressure

of

a

high-

I

Actually

eleven,

owing

to

the

typos

in

the

affidavit

and

warrant

,

eor.*u*ple,

the

inveJtigato.,

dir.orc.ed

and

conhscated

multiple

firearms

in the

home,

as

well

as

a ciedit

card

readei,

something

the

investigators

speculated

was

an

instrument

of

an

identity

theft

scheme

on

the

part of

thi

Defendant.

The

State

has

not

suggested

that

these

items

are

part

of

its

case

against

the

Defendant.

11



profile investigation,

but

to

say

that

they

acted

with

such

good

faith

as

to

come

within

the

protection

of

Leon

strains

credulity.

The

Court

would

emphasize

that

it does

not

come

to

this

decision

lightly.

We

are

aware

that

this

search

resulted

in

the

discovery

of

evidence

directly

linking

the

Defendant

to the

alleged

kidnapping

and

murder

of

Beverly

Carter.

The

exclusionary

rule,

however,

was

created

as

a

deterrent

to

law

enforcement.

The

rule

is

calculated

to

prevent,

not

to

repair.

Its

purpose

is to

deter

-

to

compel

respect

for

the

constitutional

guaranty

[of

the

Fourth

Amendment]

in

the

only

effectively

available

way

-

by

removing

the

incentive

to

disregard

it.

Elkins

v. U.S.

364

U'S'

206,217 (1960). The

particularity

requirement

of

the Fourth

Amendment

was

blatantly

disregarded

here,

and

the

Court

hereby

grants the

Defendant's

Motion

to

Suppress

all

evidence

obtained

as

a

result

of

the

illegal

search

of

165

Randall'

and

During

the

aforementioned

surveillance

at 165

Randall,

investigators

observed

the

Defendant

exiting

the

home

and

leaving

in

a

Black

2012

Ford

Fusion'

Knowing

that

the

Defendant

and

vehicle

matched

the

description

of

the

individual

seen

at

the

location

where

the

victim's

car

was

discovered,

investigators

radioed

Lieutenant

Mark

Swaggerty

to

trail

the

Defendant.

He

did

so

in

an

unmarked

car,

following

the

Defendant

in

the

Jacksonville

area'

He

lost

sight

of

the

vehicle

at

a corner,

and

when

he

turned,

he

discovered

that

the

Defendant's

,

tt.r*-

*ota*

largely

involve

the

same

factual

narrative.

For

the

purpose

of

clarity,

the

Court

will

analyze

them

in

concert.

12



vehicle

had

been

involved

in

an

accident

and

was

lying

on

its

side

in a ditch,

with

the

Defendant

climbing

out

of

the driver's

side

door.

He

approached

the scene,

observed

that

the

Defendant

was

injured,

and

asked

him

if

he needed

help.

The

Defendant

responded

that

he did,

so

Swaggerty

called

an

ambulance

to

the

scene.

The

Defendant,

in Swaggerty's

words,

was

pacing

around,

in

the

road

there,

fumbling

around.

He

had his

phone

in

his

hand,

and

he

got

in the

ambulance.

[at

42] While

the

emergency

personnel

was

examining

him,

Swaggerty

asked

the

Defendant

for

his

phone number.

At

first,

the

Defendant

gave

him

a

false

number

-

a

number

one

digit

off

from

the

number

that

investigators

knew

was

tied

to the

TextMe

account

and had

allegedly

been

the

last phone

number

to contact

the

victim

prior

to

her

disappearance.

Surmising

he

might

not be

telling

the

truth

on

it,,'

Swaggerty

asked

him

to call

his

own

(Swaggerty's)

cell

phone

so

that

the

lieutenant

would

have

the

phone number.

The Defendant

then

repeated

the

exact

phone number

in

question, and

Swaggerty

confiscated

the

phone from

him.

He was

not,

at

this

time,

mirandized

or under

arrest

according

to

Swaggerty.

The

Defendant

was

then

taken

to

the

hospital.

He

was

not

in

custody.

He

later

left

the

hospital

without

notiffing

medical

staffduring

tests

and

was

not

apprehended

until

Septe

mber

29,

201

4.

Investigator

Jordan

Ables

created

an

affidavit

to

obtain

a search

warrant

for

the

vehicle

on

Septemb

er

28,ZOl4.At

this

point,

the

vehicle

had

been

towed

to

the

Pulaski

County

Sheriff

s

Office.

Ables

testified

that

a search

warrant

for

the

vehicle

was

found

to

be

necessary

given

the

information

based

upon the

motor

vehicle accident,

search

warrant

[for

the home]

and

the

information

obtained[.]

Ables

swore

out

the

affrdavit

and

presented

the

search

warrant

for

signature

to

Judge

Gruber,

as

Investigator

Warren

had

done

previously.

The

warrant

specified

that

there

was

reasonable

cause

to

believe

that

the

vehicle

contained

the

same

categorical

list

of

13



potential evidence

as

specified

in

the

search

warrant

for

the

home

at

165 Randall.

The search

of

the

vehicle

led to the

discovery

of

white

rope,

green

duct

tape,

and

some

handgun

shells

in

a

white

bag,

as

well

as

some

items such

as

the

Fuji

camera

and

IBM

laptop

discussed

above.

For the

Defendant's

first

motion,

it

would

seek

to

suppress

any

evidence

obtained

as

a

result

of

Swaggerty's

questioning

of

the

Defendant

at

the

scene

of

the

accident,

describing

the

exchange

between

Swaggerty

and

the

Defendant

as

an

illegal

encounter

under

Arkansas

Rule

of

Criminal

Procedure

2.2.

The State

argues

that

the

questioning was

proper under

Rule

2'2

and

that the

phone was

properly seized

under

Rule

10.2.

Rule 2.2

states

that

[a]

law

enforcement

officer

may

request

any person

to fumish

information

or otherwise

cooperate

in

the

investigation

or

prevention of

crime.

The

officer

may

request

the

person

to respond

to

questions,

to

appear

at

a

police

station,

or

to comply

with

any

other

reasonable

request.

The

defense

argues

that the

encounter

between

Swaggerty

and

the Defendant

does

not

fall

within

the

purview

of

Rule

2.2,

argting

that

the

lieutenant

was

investigating

a

missing

person,

and

not

involved

in

the

prevention or

investigation

of crime.

They

offers

multiple

cases

for

this

proposition,

all of

which

are

distinguishable

from

the

facts at

bar.

In Jennings

v.

State,

69

Ark.App

50

(2000),

the

appellant

and

an acquaintance

were

standing

at an

intersection

in

a

known

drug

trafficking

area.

A sheriff

s

deputy

approached

the

defendant

and

asked

him

for

identification.

The

deputy

then

saw

a flask

in

the

acquaintance's

coat

pocket and

confiscated

it,

as

the acquaintance

was

a

minor.

The deputy

asked

if

the pair

had

any weapons,

to which

they

responded

no.

The

deputy

did

a

pat-down

search,

found

a

gun

on

the

appellant,

and

when

backup

arrived,

cocaine

was

found

in

his

possession.

Citing

Stewart

v. State,

332

Ark.

138

l4



(1998)4,

the

Arkansas

Court of

Appeals

found that

the

officers

had

no reasonable

suspicion

of

criminal

activity

to request

information

from

the defendant

under

Rule 2.2

-

he

was

simply

in

the

wrong

place

at

the

wrong

time.

The defense

also

cites

State

v.

McFadden,327

Ark.

16

(1997),

for

the

proposition

that

the

Defendant's

encounter

with Swaggerty

was

improper

under

Rule

2.2.

In

McFadden,

while

investigating

the

report of a

missing

juvenile

girl,

a

police

chief

received

information

from

her

father

that

she

was

likely

with her

boyfriend,

the appellant.

The

chief

and

the

girl's

father

were

patrolling

likely spots

where the

two

might

be, saw

the

appellant's

car, and

pulled

it over.

The

chief

saw

what

appeared

to

be

a

sawed-off shotgun

in

the

vehicle,

seized

it,

and

found

what

appeared

to be

methamphetamine

in the

butt

of

the

gun. The appellant

moved

below

to

suppress

the

contraband,

as

the

chief

testified

at trial

that

when

he stopped

the

car,

he

had no

information

that

would suggest

that

a

felony

had been

commiffed,

was being

committed,

or

was

about

to

be

committed.

His

motion

was denied,

but the

Arkansas

Supreme

Court

found

that

the

evidence

should

have

been suppressed,

as

the

chief

s

stop

of

the

vehicle

constituted

a seizure

of the

defendant

and

was

unreasonable

considering

no allegations

of

criminal

activity

were

made.

The facts

at

bar

are

distinguishable

from

the

facts

of

Jennings

and

Stewart.

In both

of

those

cases,

police

officers

in cars

approached

individuals

standing

on

the

street,

and

the

court

found

that,

there

being

no reasonable

suspicion

of

criminal

behavior

on

the

part

of

the

individuals

and

no

specific

crime

being

investigated

or

prevented,

the

questioning

by

the

officers

was

improper. Here, Swaggerty

was

not approaching

a

random

individual

standing on

a

street

comer

in the

wrong

place

at

the

wrong

time.

There

was

a

specific

investigation

going

on

in

which

the

Defendant

was considered

a

person

of

interest.

Furthermore,

the

Defendant

had

been

a

Also

cited

by the

Defendant

for

this

proposition.

15



involved

in a

vehicle

accident,

and

to suggest

that the

lieutenant's

approach

of

the

Defendant,

injured

and

climbing

out

of

an upended

vehicle,

was

analogous

to

stopping

and

requesting

information

of

someone

standing

on the

street

is unconvincing.

The

only

way

this

case

is similar

to

McFadden

is the

presence of

the

words'omissing

person. The

police

chief

in

McFadden

admitted

that

he had

no

information

thata

crime

had

been

or

was

going

to

be commiued.

He also

testified

that

he directed

the

appellant

to exit

the

vehicle

and accompany

him to

one

of their

homes

so

he

could

search

the

home

for

the missing

girl.

The defense

says

the

facts

of

McFadden

are

almost

identical

to

the

facts of

this case,

but

the comparison

is

tenuous

at

best.

There was suspicion that the missing person

in

that

case

was

possibly with

the appellant,

but a

rural

police

chief

assisting

a

disapproving

father

with locating

his daughter

is not

the same

situation

as

what

we have

here

-

at

this

point,

a

days-long

investigation

by the

Pulaski

County

Criminal

Investigative

Division.

Here, Swaggerty

and

the

other

investigators

had

information

that

tied

a

person

matching

the

Defendant's

description,

the

vehicle

he

was driving,

and

the

home

he

was

leaving

to

facts

surrounding

the

disappearance

of

the

victim.

Following

the

Defendant

as

part

of

his

legitimate

surveillance

of

a

person

of

interest

in

the

case,

Swaggerty

came

upon

the

Defendant's

car,

which

had been

involved

in an

accident.

Swaggerty

never

indicated

to

the

Defendant

that

he

was

not

free

to

leave

or demanded

that

he

answer

any

questions. He

simply

asked

whether

the

Defendant

needed

medical

assistance

and

asked

him

for

his

phone number.

Considering

that

law

enforcement

now

had

a

wrecked, uptumed

vehicle to

contend

with,

this was

a

reasonable request

if only

to

maintain

a means

of

contact

with

the

Defendant.

He

was

not

accompanied

by

law

enforcement

to

the

hosPital.

t6



Knowing

that an

individual

matching

the

Defendant's

description

was seen

in

a

vehicle

matching

the

Defendant's

near

the

victim's

vehicle

around

the

time of

her disappearance,

Swaggerty

also had

reasonable

suspicion

to think

that

questioning

the

Defendant

might assist

in

the investigation

or

prevention of

crime.

The

defense

would

have us

follow McFadden

because

that

court

found that the

missing

person investigation

was

not

investigation

or

prevention

of

crime.

But

the

chief in

that

case

admitted

that

he

had no suspicion

that a crime

had been

committed.

The facts

known to

Swaggerty

in the

present case,

combined

with the

absence

of a

custodial

seizure

or

stop

of

the

Defendant,

and

the Defendant's

non-coerced

volunteering

of

a

phone

number

known to

the investigators distinguishes

it

from

any

case

cited by the Defendant.

The

defense

would

have us

find that

the encounter

between

Swaggerty

and the

Defendant

did

not

fall within

the

scope

of

Rule 2.2because

Swaggerty

said on

the

witness stand

that

the Defendant

was

not

yet

a

suspect

at

the

time of

the encounter.5

Rule

2.2 does

not

require

this.

The defense

would

also

have us

find

that

a

missing

person

investigation

by

law enforcement

is

not an

investigation

of

or

prevention of

a

crime.

The only

authority

given for this

proposition

is

McFadden,

which does

not

hold this.

Swaggerty's

encounter

with the

Defendant

and his

questioning

of

him

was

proper

under

the

Rules

of Criminal

Procedure.

Once

Swaggerty

had initiated

lawful

contact

and

questioning

of

the

Defendant

under

Rule

2.2,

his seizure

of

the

Defendant's

phone

was

proper

under

Arkansas

Rule

of Criminal

Procedure

10.2, which

states

that

evidence

of

other

information

except

privileged information

concerning the

commission of

a

criminal

offense or other

violation

of

law

are

subject

to

seizure.

Considering

that

the

questioning

of

the

Defendant

was

proper under

Rule

2.2 and

the answer

s

Swaggerty's

testimony

was contradicted

by

Investigator

Ables,

who specifically

referred

to

the

Oefendant

as

a

suspect'

atthe

time of

the

Randall

surveillance,

but

the

varying

terminology

used

to describe

him

by

investigators

is irrelevant.

t7



given

by

the

Defendant

put

Swaggerty

on alert

that

the

number

of

the

phone

in

the

Defendant's

possession

was related

to

the

disappearance

of Carter,

this

Court

finds

that

it was

properly

seized

under

Rule 10.2.6

The

Motion

to

Suppress

Physical

Evidence

from

the Vehicle

Accident

is

therefore

denied.

We

turn

now

to

the

Motion

to Suppress

Physical

Evidence

from Faulty

Warrant

for 2012

Black

Ford

Fusion.

Here the same

language

was used

as

the

warrant

for

the

home.

Investigator

Jordan

Ables

of

the

Pulaski

County

Sheriff

s Office

prepared

the

affidavit

and

search

warrant.

He

testified

that

he

presented

Judge

Gruber

the

search

warrant,

and

that the

judge

agreed

to

it

and

signed

it.

Ables

testified

that

he

typed

every,

everything in

it

because

of

the

nature

of

the

case.

I

did

not

want to

just

put

a

generic, anything

generic in there.

7

But

Ables'

testimony

was

largely

the

same

as

Warren's,

discussed

supra.

Like

Warren,

he

indicated

that

he really

had

no

reason

to

know

whether

specific

items were

going

to

be

found

there,

outside

of

clothing

that

the

victim's

husband

had

indicated

she

was

likely

wearing

at

the

time of

her

disappearance

and

possibly

a

phone

that

could

access

the TextMe

app.8

For

the

sake

of brevity,

the

Court

will

not duplicate

its

discussion

concerning

the

warrant

for

the

search

of

165

Randall,

but all

that

analysis

would

also

apply

to this

warrant.

The

investigators

created

the

affidavit

and

warrant,

giving

themselves

maximum

possible leeway

to

search

for

any

item that

could

conceivably

be

tied

to the

disappearance

of

the

victim.

Though

the

investigators

had the

added

benefit

of

knowing

that

the

Defendant

had been

found

with

the

6

The defense

has

not

addressed

Rule

10.2

in their

initial

Motion

or

their

post-omnibus

argument

brief.

The

Motion

itself

asserts

only

that

the

encounter

between

Swaggerty

and

the

Defendant

was a

warrantless

search

and

seizure

in violation

of the

Fourth

and

Fourteenth

Amendments.

7

On

the contrary,

the

language

from

the

search

warrant

for

the

Fusion

seems

to

have

been

copied

and

pasted

frornthe

language

in

the

search

warrant

created

by

Investigator

Warren

for

the

home,

down to

the

Wpos

and

the

incorrectly

numbered

list

of

categories

of

evidence

to be

sought.

8

Again,

this

phone

was

already

in

the

authorities'

possession.

18



phone registered

to

Crystal

Lowery,

the

question

is

less

about

probable cause

and

more

about

the

breadth

of

the

warrant.

Like

the

warrant

for

the

home,

this

was a

general warrant

in

violation

of

the

Fourth

Amendment,

and

the

fact

that

it

was

presented

to

Judge

Gruber

without

further

instruction

from

him

removes

it

from

any

Leon

good faith

exception.

The

defense's

Motion

to

Suppress

is

therefore

granted.

It should

be

pointed out

that

the

record

is silent

as

to

whether

an

inventory

search

was

done on the

Defendant's

vehicle

between

the

time

when

it

was

towed

away

by

the

investigators

and

the

point

where

the

invalid

search

warrant

was executed.

There

is an'oinventory

search

exception to the warrant requirement. Pursuant to

this

exception,

police officers

may conduct

a

warrantless

inventory

search

of

a

vehicle

that

is being

impounded

in

order

to

protect

an

owner's

property

while

it is in

the

custody

of

the

police,

to

insure

against

claims

of

lost,

stolen,

or

vandalized

property, and

to

guard the

police from

danger.

Benson

v. State,342

Atk.684,

688.

If

the

State

can

show

that

any

items

found

in the

vehicle

that

they

seek

to

introduce

were

discovered

during

an

inventory

search

and

not

during

the

search

pursuant

to

the

illegal

warrant,

this

Court

will

consider

admitting

them

into

evidence.

Without

that

showing,

all

evidence

found

in

the

vehicle

is to

be

suPPressed.

After

the

Defendant

had

left

the

hospital

without

notifying

staff,

Investigator

Drew

Evans

of

the

pulaski County

Sheriff

s

Offrce

created an

affrdavit

and

warrant

for

his

arrest and

presented

it

to

Judge

Gruber.

Gruber

signed

the

warrant,

and

investigators

began

searching

for

the

Defendant.

officers

from

the

Little

Rock

Police

Department

received

a

report

of

a

suspicious

person

in

West

Little

Rock,

and

they

responded

to

Pleasant

Pointe

Apartments.

When

they

r9



arrived,

a

group

gathered there

advised

them

that

the

Defendant,

whose

picture

had

now

been

made available

to

the

public,

had entered

the

complex's

clubhouse.

Officers

then

saw

him

sitting

in

a

second-story

window

near

the

courtyard

of

the

building.

The Defendant

jumped

from

the

window,

and

one

of

the

officers

apprehended

him.

Officer

Nellis

of the

LRPD

transported

the

Defendant

to the

pulaski

Cotrnty

Sheriff s

Office,

and

when

he

was

transferred

to

the

custody

of

the

sheriffs,

the

Defendant'orefused

medical

treatment

and

requested

an

attorney

in the

presence

of Officer

Roy

of the

LRPD.

This

information

was

not

conveyed

to

the

Pulaski

County

Sheriff

Investigators

but

was

noted

in Officer

Roy's

report.

Defendant's

Ex.

1.

The Defendant was then

taken

to

an

interview

room by the

sheriff

s

investigators.

He

was

informed

that

he

had been

arrested

on

a

kidnapping

warrant,

and

they

read

him

Miranda

rights

over

his objection

that

he

did

not

need to

hear

them.

The Defendant

was

given

a

form

where

he

could

indicate

that

he

either

understood

his

rights

or

waived

them.

He

refused

to sign

either

portion

of

the

form.

State's

Ex.

4.

At this

point,

no

audio

had

been

recorded,

but

soon

thereafter,

the

investigators

began

taping

the

encounter.

The Defendant

argued

with

the

investigators,

saying

that

he

either

wanted

to

be

taken

to

a room

without a

camera

or

be

provided with

a

lawyer.

Operating

under

the belief

that

he

had

waived

his

rights

and

that

his

ultimatum

about

being

moved

was

not

an unequivocal

request

for an

attorney,

the

investigators

continued

interrogating

him.

He

was

eventually

moved

to

Lieutenant

Swaggerty's

office,

where

recording

equipment

was also

installed, unbeknownst to the Defendant. The investigators interrogated

him

further.

The

Defendant

was

then

given

access

by

the

investigators

to

his

iPhone,

whereupon

he

played a

message

that

had been

recorded

by

Beverly

Carter

to

her

husband.

The

message

stated,

Carl,

it's

Beverly.

I

just

want

to

let

you know

I'm

okay.

I

haven't

been

hurt.

Just

do

what

he says,

and

20



please

don't

call

the

police.

If

you

pall

the

police, it could

be bad.

Just

want

you

to know

I

love

you

very

much.

The

investigators

requested

he

play

it again,

but

he

refused

to

do

so'

The

Defendant

began

telling

the

officers

that

he wanted

to

provide

them

information,

but

that

he

would

only do

so

if he

were

charged

in

federal

court.

The

investigators

contacted

an

FBI

agent,

Agent

Steve

Burroughs,

who

came

to the

office

with a U.S.

Attorney.

Agent

Burroughs

joined

the

investigators

in

the

interrogation,

and

he read

the

Defendant

his

Miranda

rights

again.

The

Defendant

then

signed

a

form

indicating

he

had been

read

his

rights

and

was

aware

that

he

did

not

have

to

continue

speaking

without

the

presence of

an attomey.

State's

Exhibit

13.

The

interrogation

continued. The Defendant

refused

to give

details about the alleged

kidnapping

unless

Agent

Burroughs

assured

him

he

would

be

tried

in

federal

court.

The agent

repeatedly

stressed

that

he had

been

given

no

information

that

would

indicate

that

federal

charges

were

warranted,

and the

Defendant,

investigators,

and

agent

argued

for

some

time

about

this.

They

eventually

came

to

a

stalemate,

the

questioning ceased,

and

the

Defendant

was taken

back

to the

interview

room

where

the

interrogation

first

began.

Sergeant

Mike

Blain

of

the

PCSO

testified

that

sometime

after

the

interrogation

ended

and

the

Defendant

was

retumed

to

the

interview

room,

the

investigators

heard

the

Defendant

.,yelling,'

that

..[h]e

wanted

to

talk

to

that

FBI

guy

and

the sheriff

s

guy

again.

The

investigators

entered

the

interview

room,

where

the

Defendant

was

still

shouting

that

he wanted

to

speak

to

the

FBI

agent.

The

Defendant

told

the

investigators

that

he

was

willing

to

take

deputies

to

some

locations,, where the

victim

had been.

The investigators

placed

the Defendant

in

a

vehicle

and

traveled

to

multiple

locations

in

Pulaski

and

Saline

Counties,

while

the

Defendant

related

details

of

the

victim,s

kidnapping.

The

victim

was

not

found

at these

locations,

and

they

retumed

to

the

interview

room.

Investigator

Allison

advised

the

Defendant

that

his

rights

were

still

valid,

and

21



the

Defendant responded that he understood

this to be the

case.

Eventually

the

investigator

mentioned something

about the

Argos

Concrete

Plant

in

Cabot,

a

former

employer

of

the

Defendant.e

The Defendant made a comment

about

having'oput

her

in a mixer.

The

investigator

asked

him another

question

about

Argos,

and [h]e

just

leaned back

in

the chair and said

lawyer.

The investigators then ceased

all

communication

with

the

Defendant.

The

State

introduced

a

great

deal

of

testimony

regarding the

Defendant's

purported

waiver

of

his

rights with

the investigators both

when he

arrived

at the Sheriff s Office and

when

Agent Burroughs was

present.

The defense has cross-examined

the investigators

in detail about

the

statements he made

indicating

that

he

would

not

talk

unless he was

moved

to

another room

or

given

an attorney.

This Court,

need not decide

whether the

Defendant waived his rights or

requested an attorney at the

beginning

of

his

interrogation

by the

investigators. Even assuming

that this

request

was

equivocal

and ambiguous,

as

the State

asserts,

the

Defendant's earlier

request to speak

to an

attorney

was unambiguous.

The

Defendant introduced the

arrest report

created

by Offrcer

Cedric

Roy of the

LRPD.

Defendant's

Ex.

1.

In

that

report,

Officer

Roy

indicates that

the Defendant

requested

an

attorney

when he was transferred

to the custody

of

the

Sheriff. Officer

Roy

did not convey

this

information to

the Sheriff

s investigators.

The

State

did

not

call

Officer

Roy

as

a

witness,

but

they

also

did

not dispute

the

authenticity

of

the

report or

the facts

contained

therein.

The

Court

finds the

information

contained

in

the

report

credible and

finds

that this

request

by the

Defendant

at

the

time of

transfer

from

LRPD to

PCSO

constituted

an assertion

of

his

right

to

have an

attorney

present

during

interrogation.l0

Once

an accused

has expressed

his

desire

to

deal

with

the

e

This is where the

victim

was

eventually

found.

l0

The Defendant also

took

the

witness

stand

at the

omnibus

hearing

and asserted

that

he

made

a

request to speak

to an

attorney

to

the

LRPD.

The Court

wishes

to

stress

that

it

finds the

22



police

only

through

counsel,

he is

not

subject

to

further

interrogation

by

the authorities

until

counsel

has

been

made available

to

him,

unless

he himself

initiates

further

communication,

exchanges,

or

conversations

with

the

police.

Edwards

v. Arizona

451 U.S.

477,484-485

(1981).

See

also Wedgeworth

v.

State,374

Ark.373

(2008)

(accused may

waive

his

rights

by

initiating

further

communication

with the

police...any resulting

statements

may

be admissible')

The

Court

finds

that the

introduction

of

any

statements

the Defendant

made

after

he

invoked

his

right to

counsel

in the

presence

of

Officer

Roy

would

be a

violation

of

his right

to an

attorney

under

Edwards.

The

Court

finds further

that

the

Defendant's

yelling

for

the

investigators

to

return was

a

voluntary

re-initiation

of

communication

with

the investigators.

The defense's

Motion

to Suppress

Statements

During

Interrogation

is therefore

granted

with

respect

to

any statements

made

between

his

invocation

of

his

right to

an attorney

in the

presence

of

Officer

Roy

and

his

re-initiation

of

contact

with

the

investigators

by yelling

and

requesting

to

speak

to

the

FBI agent

again.

The

Motion

is denied

with

respect

to

any

statements

he

made during

interrogation

after that

re-initiation

but

before

he

said

the

word

lawyer

and

the

investigators

ceased

communications

with

him.

Notwithstanding

the

Court's

Order

with

respect

to

this

Motion,

the

Defendant

will

not

be

permi1ed

to use

this

holding

to

perjure

himself

should

he

choose

to

testify

on

his

own

behalf..

The

parties are

put

on

notice

of

the

holding

of

Harris

v.

New

York,401

U.S.

222

(1971). That

case

stands

for

the

proposition

that

should

a

Defendant

testiff

on

his

own

behalf

at

trial,

any

statements

or evidence that

has been suppressed

as

violative

of Miranda

may

nonetheless be used

Defendant's

testimony

completely

incredible.

The Court

bases

its

decision

that

the

Defendant

made

a

request

to

have

counsel

present

during

his interrogation

solely

on

the

material

contained

in the

LRpD

Offrcer's

Report

and

gives

absolutely

no

weight

to the

testimony

of

the Defendant.

23



to impeach

him.

The

State

will

be

permitted

to

introduce

anything

that

has

here

been

suppressed

for

impeachment

purposes should

the

Defendant

take

the

witness

stand.ll

The State

has further

argued

that the

recording

of

the

victim

that the

Defendant

made

and

played

for

the

investigators

should

be

admitted

despite

the

illegal

interrogation

of

the Defendant.

The State

cites

United

States

v.

Patane,

542 U.S.

630

(2004)

for

its

argument

that the fruit

of

the

poisonous

tree doctrine

only applies

to

testimonial

evidence

that

would

be

admifted

against

a

Defendant

in

violation

of

his

Fifth

Amendment

rights.

In

Patane,

the

United

States

Supreme

Court

held that

a failure

to

give

a

suspect

a Miranda

warning did

not

require

suppression

of

the

physical

fruits of

the suspect's unwarned but

voluntary

statement.

The State's argument

here

is

well

taken.

Patane and

its

progeny show that

where

a

suspect

has been

interrogated

in

violation

of

Miranda,

only

the

testimonial

fruit of

that

interrogation

should

be suppressed,

and

not

physical

evidence

obtained

as

the

fruit of

a voluntary

statement.

Accordingly,

as

the

recording

of

the

victim

is

not

testimonial,

it does

not run

afoul

of

the

constitutional

rights

sought

to be

protected

by

Miranda.

The

recording

of

the

victim

is admissible.

As

a

final

matter,

the

State

has

requested

that

another

hearing

be

held

prior

to

trial

to

rebut

the

allegations

made

by

Defendant

during

his testimony

at

omnibus

that

he

was assaulted

by a

reserve

deputy

in

the bathroom

prior to

his

interrogation

by

the

Pulaski

County

Sheriff

s

investigators.

The

State

cites

cases

such

as

Smith

v. State,254

Ark.538

(1973) and various

persuasive

authority

from

sister

jurisdictions

for

the

proposition

that

once

an

allegation

has been

made

that

a

confession

was

the result

of

coercion, the

charge

must

be

rebutted.

ll

It

is one

thing

to

say that

the

Government

cannot

make an

affirmative

use

of

evidence

unlawfully

obtained.

Ii

is

quite another

to say

that

the

defendant

can turn

the

illegal

method

by

which

evidence

in

the

Govemment's

possession

was obtained

to

his own

advantage,

and

provide

himself

with

a

shield

against

contradiction

of

his untruths.

[Allowing

this]

would

be a

perversion

of

the

Fourth

Amendment.

Harris,

supra,

at224.

24



The

Defendant

stated

during

cross-examination

by

the State

that

prior

to

his

yelling

for

FBI Agent

Burroughs

that he

had

been

taken to

the bathroom

by Reserve

Deputy

Gary Siebel

and that

the

reserve

deputy beat

him

up. The

Defendant

asserted

that the

only

reason

he

yelled

to

speak to

Burroughs

again was

that

he had been

threatened

and

attacked.

Defense

attomeys

did

not

question

the

Defendant

about

this statement.

This

encounter

has

not

been

mentioned

in

any

of

the

Defendant's

pleadings,

in

any

of

his

statements

to the

media,

or

in

any

testimony

elicited

from

any

other

witness.

The

Court

is aware

of

the

authority

cited by the

State,

but

it

does

not

find

the

Defendant's

testimony

credible

regarding

this

encounter.

The

Court

will

not

grant

the State

a

hearing

on

this matter but

will

allow

the

State

to

revisit

the assertion

at

the

time of

trial.

Motion

in Limine to

Exclude any

Testimonv

bv

Crvstal

Lowerv

Concerning

Communication

Between

Defendant

and

Lowerv

During

the

pendency

of this

case,

the

Defendant's

wife and

co-Defendant,

Crystal

Lowery,

pled

guilty

to

first-degree

murder and

kidnapping

of

the

victim.

As

part of that

negotiated plea,

she

has agreed

to

provide

truthful

testimony

against

the Defendant

at

his

trial.

It

is

clear,

and

not disputed

by

the defense,

that

Lowery

is

a

co-conspirator

in this

matter.

The

defense

has

moved

this Court

to

bar the

State

from

calling

her

as

a

witness,

asserting

that any

testimony

she

might

provide

against

the

Defendant

would

violate

the spousal

privilege

of

Arkansas

Rule

of

Evidence

504.

The

State

has

responded

that

many of

the

statements

made

between

the

two

were also

provided

to

-

or

intended

to

be

provided to

-

third

parties. The

State

argues

further

that

504(d)

is an

exception

to

the

marital

communications

privilege with

respect

to

crimes

committed

against

any

third

parties and

that

MacKool

v.

State,

365

Ark.

416

(2006)

stands

for

the

proposition

that

the

Defendant

has made

so

many

statements

to

various

parties

25



repeating

allegedly

confidential

communications

that

he has

waived

privilege

with respect

to all

communications

to his

wife

regarding

the

victim.

To begin,

the

Court

is

not

convinced

by

the State's

interpretation

of

Rule

504(d).

That

section

reads as

follows:

(d)

Exceptions.

-

There

is

no

privilege

under

this

rule

in a

proceeding

in

which

one

[1]

rpo6.

is charged

with

a

crime

against

the

person

or

property of

(1)

the

other,

(2)

a child

oleither,

(3)

a

person

residing

in

the

household

of

either,

or

(4)

a third

person

committed

in the

course

of committing

a

crime

against

any

of

them.

The

State

reads subsection

(4)

as stating

that

any

confidential

communications

a

Defendant

might

make

to his

spouse

regarding

a crime

against

a third

person

cannot

be

considered

privileged.

Reading

the subsection

in

that

way

would

gut

the

entire

privilege, as

any

confidential

communication

sought

to be

introduced

could

be

admitted,

so

long as

it

involved

the

Defendant

committing

a

crime

against

a third

person or

their

property. Under

this

interpretation,

there

could

literally

be

no spousal

privilege any

time

a

Defendant

is accused

of a

crime

against

any

person

or

property.

The

Court

declines

to

interpret

the

exceptions

to

the

privilege

in

this

way.

The subsection is

indelicately

worded, to

be

fair,

but the

only logical

reading is that

the

.'third

person

language

describes

a

situation

where

the

Defendant

has attempted

to commit

a

crime

against

the

person or

property

of

the

other

spouse,

a

child

of

either,

or

a

person

residing

in

the

household

of

either

and

in doing

so

inadvertently

committed

the

crime

against

a

person or

property of

a third

party.

Neither

is

the

Court

convinced

by

the

State's

argument

that

MacKool

holds

that

a

Defendant

may disclose

so many

purportedly

confidential

communications

that

it would

constitute

what

would

seem

to be

a

blanket

waiver

of

his

spousal

privilege.

MacKool

instead

is

a

fairly typical

marital

privilege

case

that

mechanically

applies

marital

privilege

and

exemption

precedent to

various

statements

made

in

that

case.

This

case

does support

the

settled

proposition

26



that

the

privilege

applies

only

to

communications,not

to

what the

spouse

heard,

saw, and

observed

in

relation to

a

criminal

charge.

MacKool,

supra,

at

446

(emphasis in original).

The

privilege is

also

destroyed

where the

purportedly confidential

communication

is

overheard

by or

meant

to

be shared

with

a

third

party. Arkansas

Rule

of

Evidence

510

holds

that

[a]

person

upon

whom

these

rules confer

a

privilege

against disclosure

waives

the

privilege if

he or

his

predecessor while

holder of the

privilege

voluntarily

discloses

or

consents

to

disclosure

of any

significant

part

of

the

privileged matter.

Where

the

Defendant

has shared

information

with

any

third

party

that

he alleges

is

a

confidential

communication,

he

has waived

his

privilege

with

respect

to

that

statement, and

it

will

be

admitted.

See,

e.g.,

Dansby

v.

State, 338

Ark.

697

(1

999),

MacKool,

supra,

at

447

-448.

Additionally,

the Court

is

aware

of

and

will apply

the

holding

of United States

v.

White,

2009 U.S.

Dist

LEXIS

15906.

That case

notes

that

the

Eighth Circuit

Court

of

Appeals

has

approved

the

Joint

criminal

activity'

exception

to the

privilege

ld, at27,

citing

United States

v.

Evans,

966F.2d398,401

(8th

Cir.

1992).

Because

the

defendant

in

White

was

involved

in

a

drug

conspiracy

with

her

husband,

the

United

States

District

Court

for

the

Northem

District

of

Iowa,

Westem

Division,

found

that

any

alleged

confidential

communications

did

not apply

if

they

were

related

to ongoing

criminal

activity.

ld,

at28.

The

Defendant's

wife

will

be

permitted to

testifu

against

him,

and

the defense's

Motion

is essentially

denied.

More specifically,

under

the

precedent

cited

by

this Court,

Lowery

may

testiff

to anything

she

saw, heard,

or

observed

that

was

not

a

confidential communication.

If

her

testimony

does

involve

a

confidential

communication

made

during the

joint

criminal

activity

of

the

pair,

that

testimony

will be

admitted

under

the'Joint

criminal

activity

exception

to

the

marital

privilege.

If her

testimony

involves

a confidential

communication

made

prior

to

the

joint

27



criminal

activity of the

pair,

that communication

will

not be allowed unless the State can

show it

was made in the

presence

of or disclosed to a

third

party.t2

The Defense indicates

in their

post-hearing

argument

brief

that

the

State

introduced

a

list of

topics co-Defendant

plans

to

testiff to

concerning

events

prior

to the alleged abduction

of

Carter. The

Court

is

aware

that the

State

is

in

possession

of

a

list of

this type,

but

it

does

not

seem

to

appear

in

the evidence submitted thus far

to

the Court.

If

the State

provides

this

list

to

the Court, it will

review

the

substance

of

the list and make determinations regarding what will

and will

not

be

allowed.

The

State

has

argued

in

their brief

about classes of statements

like

this

-

statements made

to law

enforcement, the media,

and letters

to

the co-Defendant

-

that they allege

waived

the

privilege

and statements

made

to

the co-Defendant that they consider

404(b)

evidence

of

motive

and

intent. To

the extent that the

Court's

ruling above

has

not already

disposed

of

these,

the

Court

will rule on them

prior

to trial once

it

has

been

provided

with

the

aforementioned

list.

The

Court

turns

to two final

matters

-

the Defendant

has asserted in his

post-omnibus

argument brief

that

his arrest by the

LRPD

was

not

supported

by

probable

cause

and

that

the

Court

should

suppress

all

evidence

found

in the

silver

iPhone because the

search

warrant

was

a

general

warrant.

The

defense

has briefed

this

argument,

though

it filed no

motions regarding

either

issue

prior

to omnibus.l3

The

State

has not

had the

opportunity

to respond

to these

12

The

State has

submitted three compact

discs

containing interviews

with

the Defendant where

he is

alleged

to

have

revoked the

confidentiality

of

statements

he made to

Lowery.

The Court

has

reviewed all of this material, and

his

only

mention of

Lowery involves

extramarital

affairs

he

participated

in.

Nothing

in

these

interviews

suffices

to

waive

any

confidential

communications

of

which

the

Court

is

aware.

13

The

Court

is not

aware of

any assertion

prior

to this

brief

that the

LRPD

had

no

probable

cause

to

arrest the Defendant.

The

defense

alleged

in their

pre-trial

Motions

that the

search warrants

for

the

home and

the

vehicle

were

overly

broad, and the Court

has

granted

these

Motions.

Regarding

the assertion that the

warrant for

the

silver

iPhone was also a

general

warrant,

the Court does

not

28



allegations,

and

the

Court

will not

rule on

them

until they

have been

given

the

opportunity

to do

so.

IT

IS

SO

ORDERED.

HERBERT

T. WRIGHT,

/t

-

1-tf

DATE

see this

distinct

issue

presented in the

pre-trial Motions.

The supposedly

offensive

warrant

language

for the

iPhone complained

of

by

the

defense

also does

not

appear

to

be

present in the

exhiUiti

submitted

thus

far to the

Court.

If the

defense

is arguing

this,

the

State

should

be

given

_

CIRCUIT

ruDGE

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