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Rea v. State

Supreme Court of Arkansas

October 27, 2016

MICHAEL EUGENE REA APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF, REQUESTING CERTIFIED COPIES OF RECORDS, TO USE 12-POINT TYPEFACE SALINE COUNTY CIRCUIT COURT, NO. 63CR-13-39]

         APPEAL DISMISSED; MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF AND TO USE 12-POINT TYPEFACE MOOT; MOTION FOR CERTIFIED COPIES OF RECORDS DENIED.

          PER CURIAM.

         On December 5, 2013, appellant Michael Eugene Rea was found guilty by a Saline County jury of four counts of computer exploitation of a child in the first degree and of twenty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child for which he was sentenced to an aggregate term of 3720 months' imprisonment. This court affirmed his convictions and sentences. Rea v. State, 2015 Ark. 431, 474 S.W.3d 493. Rea subsequently timely sought and was denied Arkansas Rule of Criminal Procedure 37.1 (2013) postconviction relief. Rea lodged an appeal in this court from the denial of postconviction relief. Now before this court are Rea's pro se motion for extension of time to file brief, motion for certified copies of records, and motion to use 12-point typeface.

         When it is clear from the record that the appellant cannot prevail if an appeal of an order that denied postconviction relief were permitted to go forward, we dismiss the appeal. Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam); see also Justus v. State, 2012 Ark. 91. As it is clear from the record that Rea could not prevail on appeal, the appeal is dismissed. The dismissal of the appeal renders the motion for extension of time to file brief and motion to use 12-point typeface moot.

         In making a determination on a claim of ineffective assistance of counsel, we assess the effectiveness of counsel under the standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 688 (1984), whereby a petitioner must demonstrate that counsel made errors so serious that it prejudiced the outcome of the trial. Sartin v. State, 2012 Ark. 155, at 2-3, 400 S.W.3d 694, 697-98. Under the Strickland standard, the reviewing court indulges in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. In order to satisfy the prejudice part of the Strickland test, the petitioner must show that counsel's deficient performance prejudiced the defense, such that there is a reasonable probability that the outcome of his trial would have been different absent counsel's errors. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

         In his Rule 37.1 petition, Rea first argued that his trial counsel was ineffective for failing to file a motion to suppress evidence as fruit of an illegal search and seizure based on two searches-specifically, the search of the CDs contained in his backpack and the search of his home. Rea contends that a third party told the Malvern Police Department that Rea's backpack was in her vehicle. The Malvern Police Department then took possession of the backpack and contacted Rea to retrieve it, and "[w]ith absolutely no indication of illegal activity, police had no legal authority to search the contents of specific CD's inside [Rea's] backpack. Police could have obtained permission or a warrant." (Emphasis added.) Because counsel did not object to the warrantless search, Rea claimed he was prejudiced by the viewing of the CDs, which constituted an illegal search. The trial court found that- although Rea admitted the backpack was his, he denied ownership of the CDs, some of which had images depicting him and the juvenile victim, T.S.-because Rea denied ownership of the CDs, he did not have standing to assert a Fourth Amendment challenge to their seizure. Additionally, the trial court noted that Rea was contacted to come to the Malvern Police Department to retrieve his backpack, which he did not do, and in failing to do so, he abandoned his property. Because Rea abandoned his property, he abandoned his privacy interest in the property and its contents and could not assert a Fourth Amendment challenge. The trial court further noted that the backpack was turned over by a third party, a private citizen, and that a search by a private citizen raises Fourth Amendment concerns only if the person conducting the search acts at the request or direction of the government or is engaged in a joint endeavor with the government. The trial court's order stated that Rea's failure to retrieve his property required the Malvern Police Department to inventory his property, a process during which the pornographic images on the CDs were found.

         An appellant must have standing to assert Fourth Amendment rights because those rights are personal in nature. Wilson v. State, 2014 Ark. 8. Whether an appellant has standing depends on whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Wilson, 2014 Ark. 8, at 14 (citing Stokes v. State, 375 Ark. 394, 399, 291 S.W.3d 155, 158 (2009)). Under the Fourth Amendment, evidence should not be excluded unless the court finds that an unlawful search or seizure violated the defendant's own constitutional rights. Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648 (1999). A defendant's rights are violated only if the challenged conduct invaded his legitimate expectation of privacy, rather than that of a third party. Id. The proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights have been violated. See Gaylord v. State, 354 Ark. 511, 127 S.W.3d 507 (2003).

         At trial, Chad Meli, a special agent with the Arkansas Attorney General's Office, testified that, prior to the search of Rea's residence, he had been contacted by the Malvern Police Department regarding items from Rea's backpack.[1] Pictures were printed from the CDs from the backpack, and Special Agent Meli took some of the printed photos with him to Rea's residence. A camera, an S.D. card, and the CDs were taken from the backpack. Rea testified he had packed a backpack to go with some friends for a weekend getaway. He had packed clothes, a camera, and an S.D. card but had not packed any CDs in the backpack. After donating plasma in Little Rock to get some money, his friends left him, taking his backpack, and he did not see his backpack again. Rea testified that someone must have placed the CDs in his backpack because they did not belong to him.

         Rea lacked standing to assert a Fourth Amendment challenge to the search and seizure of the CDs.[2] Rea specifically denied that the CDs belonged to him. See Dixon v. State, 327 Ark. 105, 111, 937 S.W.2d 642, 646 (1997) (Dixon would have personal Fourth Amendment rights to a gun itself found during a traffic stop but had no possessory interest in a truck or canvas bag to grant him standing to challenge the intrusion into the truck or the search of the canvas bag.). Because Rea lacked standing to challenge the search and seizure of the CDs, his trial counsel was not ineffective for failing to file a motion to suppress regarding those CDs. Where it is asserted that counsel was ineffective for failure to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make a motion or argument that is meritless is not ineffective assistance of counsel. Pigg v. State, 2016 Ark. 108, at 7, 486 S.W.3d 751, 756 (per curiam), reh'g denied (Apr. 14, 2016); see Camargo v. State, 346 Ark. 118, 55 S.W.3d 255 (2001). Trial counsel was not ineffective for failing to make a meritless motion to suppress, and the trial court properly denied Rea's request for relief. See Camp v. State, 2015 Ark. 90, 457 S.W.3d 276 (There is no reason to address both components, the deficiency and prejudice prongs, of the inquiry for ineffective-assistance claims if the defendant makes an insufficient showing on one.).

         In his Rule 37.1 petition below, Rea argued trial counsel was ineffective for failing to investigate "probable cause issues" when Special Agent Meli contacted Rea's probation/parole officer, Ken Ogden, and had Ogden assist in a probationary home visit which led to the seizure of property. Specifically, he contends trial counsel was ineffective for failing to suppress the search and seizure of evidence from Rea's home because the "home visit" was utilized to circumvent the requirement of probable cause or a warrant.

         The affidavit for warrant of arrest included in the record in this appeal indicates that a "home visit was conducted at the residence of Michael Rea, pursuant to the conditions of his probation." Also included in the record were the terms and conditions of Rea's probation-signed and dated on June 20, 2011-which included the condition that he submit his "person, place of residence, and motor vehicle to search and seizure at any time, day or night, with or without a search warrant, whenever requested to do [so] by any Department of Community Correction Officer." At his trial, Rea testified that he read and signed a Miranda waiver form after which he admitted he had taken photographs of T.S. because he believed taking photographs of a sixteen-year-old was legal because it was a consenting age. Rea further testified that he signed consent-to-search forms for a Travelstar hard drive, a Hitachi hard drive, and a Maxtor hard drive. Rea's mother allowed the investigators to take a Toshiba laptop. Rea stated that he allowed the investigators to have access to any of the items that they wanted because he had "nothing to hide" and that he "didn't ask for a warrant … [he] let them have it." Rea admitted he was on probation and was a registered sex offender.

         Warrantless searches of probationers have been upheld and the supervision of probationers is a "special need" of the state, permitting impingement upon privacy that would not be constitutional if applied to the public at large. Williams v. State, 321 Ark. 344, 349, 902 S.W.2d 767, 770 (1995); see also Cherry v. State, 302 Ark. 462, 467, 791 S.W.2d 354, 356 (1990) (per curiam) (citing Griffin v. Wisconsin, 483 U.S. 868 (1987)). The special needs of the parole and probation process call for intensive supervision of the parolee and probationer, making the warrant requirement impractical. Here, acts arose that indicated Rea's involvement with possession of CDs containing child pornography. Although a parole/probation officer's ability to conduct a warrantless search is not unlimited, and such a search must be reasonably conducted, the facts here suggested reasonable grounds to investigate whether Rea had violated the terms of his probation. See Williams, 321 Ark. 344, 902 S.W.2d 767.

         Contrary to Rea's assertions, probable cause is not required during a probationary search, and the probationary "home visit" was not a means to circumvent a warrant requirement-particularly in light of Rea's consent to search, which he signed granting the investigators permission to search for the electronic evidence that he argued trial counsel should have suppressed. Trial counsel was not ineffective for failure to make a motion or argument where petitioner has failed to show that the motion or argument would have been meritorious, because ...


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