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Lewis v. State

Supreme Court of Arkansas

June 8, 2017



          James Law Firm, by: William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry and Adam Jackson, Ass't Attorneys Gen., for appellee.

          JOHN DAN KEMP, Chief Justice.

         Appellant Aaron Michael Lewis[1] appeals an order of the Pulaski County Circuit Court convicting him of capital murder and kidnapping and sentencing him as a habitual offender to terms of life imprisonment without parole and life, respectively. For reversal, Lewis argues that the circuit court erred in denying his motions to suppress on five separate grounds. The State filed a cross-appeal alleging that the circuit court erred in granting Lewis's motion to suppress evidence seized pursuant to two search warrants. We affirm the circuit court's denial of his motions to suppress, and we dismiss the cross-appeal.

         I. Facts

         On September 25, 2014, Carl Carter reported that his wife, Beverly ("Carter"), a real estate agent, was missing. He stated that Carter had planned to show a house in Scott, but when she had not returned home by 9:00 that evening, he became worried and drove to the Scott residence. There, he saw Carter's vehicle in the driveway and discovered that she had left her purse inside the car. Officers from the Pulaski County Sheriff's Department were dispatched to the Scott residence, but they did not find Carter.

         Crystal Lowery, Lewis's wife, testified that she and Lewis had devised a scheme whereby they planned to target a victim who was married, who worked alone, and who allegedly had $100, 000 from whom they would seek a ransom. Lewis and Lowery found Carter's Facebook page online, discovered that she was a real estate agent, and believed that she was a "rich broker." They called Carter, identified themselves as Crystal and Steve Adams, and asked Carter to show them a home in a remote location. Posing as Steve Adams, Lewis met Carter at the Scott residence while Lowery went to work. Lowery testified that Lewis later texted her a picture of Carter, who was bound with green tape in the trunk of Lewis's car. Lowery stated that Lewis planned to take Carter to his place of employment, a concrete plant in Cabot, but that "he didn't feel secure in leaving her there." When Lowery came home, she learned that Lewis had locked Carter in the bedroom. Lewis explained that he had Carter's debit-card PIN but that her purse was still at the Scott location. Lewis asked Lowery to "keep an eye on [Carter]" while he retrieved her purse. When he returned, Lewis told Lowery that "the cops were already there at the house" and that the plan had changed. According to Lowery, Lewis left with Carter, killed her, and left her body near the cement plant. The next morning, Lewis and Lowery purchased a shovel and buried Carter's body in a shallow grave at the cement-plant site. Dr. Charles Kokes of the Arkansas State Crime Lab testified that Carter's cause of death was asphyxia due to an external-airway obstruction from a duct-tape mask on her face.

         Carter's phone records indicated that she had placed a call to an unidentified cellphone number that was returned to TextMe, Inc., a company that assigns phone numbers and provides smartphone users with free text and voice messaging. Pursuant to an exigent-circumstances request, TextMe provided a report to the Pulaski County Sheriff's Office stating that the unidentified number on Carter's phone belonged to Lowery, who lived in Jacksonville.

         On September 28, 2014, Lieutenant Mark Swaggerty conducted surveillance on Lowery's home, where he observed Lewis get into a black Ford Fusion and drive away. Both Lewis and the vehicle matched a description of a person and a car seen at the Scott residence when Carter was present. Lieutenant Swaggerty followed Lewis for approximately three miles. As Lewis drove around a curve, he lost control of the vehicle and crashed into a ditch. Lewis's car landed on the passenger side in a concrete culvert. The lieutenant approached Lewis, who told the officer that he needed to go to the hospital. Emergency personnel arrived and examined Lewis. When Lewis was inside the ambulance, Lieutenant Swaggerty asked for his telephone number. Lewis responded with a number that was one digit off from the number that was connected to the text messages received by the victim via the TextMe app. When the lieutenant asked Lewis a second time, he gave the correct number. The lieutenant then seized Lewis's phone. According to Swaggerty, Lewis had not been taken into custody at that time. EMTs transported Lewis to the hospital, but he left the hospital during testing that day without notifying any medical staff. Police subsequently apprehended Lewis on September 29, 2014.

         Officers returned to the scene of the accident, overturned the vehicle, performed an inventory search of the interior passenger area, and completed a vehicle-search report. Sergeant Shane Hastings signed the report, which indicated that the trunk had not been "opened or inventoried." The investigators surrendered the vehicle to a tow service, which transported the vehicle to the Pulaski County Sheriff's Office where it was locked and secured. Officers obtained a search warrant and found numerous items, including hair fiber, in the trunk of Lewis's car.

         Police officers arrested Lewis, who gave two custodial statements. Before trial, Lewis filed four motions to suppress. First, Lewis filed a motion to suppress his custodial statements made to officers of the Pulaski County Sheriff's Department. In his motion, he alleged that his arrest was illegal and that any statements made to police were the fruits of an illegal arrest. Second, Lewis filed a motion to suppress the physical evidence from his vehicle, alleging that officers had illegally detained him and conducted a search and seizure of him and his property. Third, he filed a motion to suppress evidence "based on [the] overreaching use of [a] prosecutor's subpoena power, " stating that, "[i]n the course of the investigation, prosecutor subpoenas were sent to multiple companies, including AT&T and Google." In his motion, Lewis claimed that these subpoenas should have been suppressed because they were issued "for the law enforcement investigation and not for the prosecutor's investigation." Finally, Lewis filed a motion to suppress a voice recording of the victim on his cell phone based on the Arkansas Constitution, United States v. Patane, 542 U.S. 630 (2004), and the Arkansas Rules of Criminal Procedure. The State responded that the circuit court properly denied each of these motions to suppress.

         The circuit court entered an order granting inter alia Lewis's motion to suppress on his first statement, which he made after he invoked his right to counsel, as the product of an illegal interrogation. The circuit court admitted the voice recording on Lewis's phone and the phone itself that the officer seized after Lewis's car accident. The circuit court denied Lewis's motion to suppress his second statement, finding that he had reinitiated contact with law enforcement, and admitted certain items found in Lewis's car pursuant to the on-site inventory search but suppressed other items based on an overbroad warrant. The circuit court found that Lewis lacked standing to challenge the prosecutor subpoenas.

         Lewis's case proceeded to trial. A Pulaski County jury found Lewis guilty of capital murder and kidnapping and sentenced him to life without parole on the murder charge and a life sentence on the kidnapping charge. Lewis timely filed his notice of appeal. The circuit court filed an amended sentencing order. The State filed its notice of cross-appeal.

         II. Motions to Suppress

         A. Cell Phone

         For the first point on appeal, Lewis argues that the circuit court erred in admitting Lewis's cell phone. Specifically, Lewis contends that the police officer illegally seized Lewis's phone as the product of an illegal encounter and that it should have been suppressed pursuant to Rule 2.2 of the Arkansas Rules of Criminal Procedure. The State responds that the circuit court correctly found that the police officer encounter was proper under Rule 2.2 and that the phone was properly seized under Rule 10.2 of the Arkansas Rules of Criminal Procedure.

         Police-citizen encounters have been classified into three categories. The first category is contemplated by Rule 2.2 of the Arkansas Rules of Criminal Procedure. The authority for a police officer to act in a nonseizure encounter is recognized in Rule 2.2(a), which provides,

A law enforcement officer may request any person to furnish 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.

         This type of nonseizure encounter occurs when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990). This encounter is consensual and does not constitute a seizure. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). A seizure of a person occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id., 67 S.W.3d 567. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. Id., 67 S.W.3d 567. The second category is contemplated by Rule 3.1 of the Arkansas Rules of Criminal Procedure. Thompson, 303 Ark. 407, 797 S.W.2d 450. This second type of encounter occurs when the officer justifiably restrains an individual for a short period of time because the officer has a reasonable, articulable suspicion that the person has committed or is about to commit a crime. Thompson, 303 Ark. 407, 797 S.W.2d 450. The final category is the full-scale arrest, which must be based on probable cause. Scott, 347 Ark. 767, 67 S.W.3d 567.

         A nonseizure encounter pursuant to Rule 2.2 is permissible "only if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime." Stewart v. State, 332 Ark. 138, 146, 964 S.W.2d 793, 797 (1998). This court has stated that the approach of a citizen pursuant to a police officer's investigative law-enforcement function must be reasonable under the existent circumstances and requires a weighing of the government's interest for the intrusion against the individual's right to privacy and personal freedom. Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982). To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. Id., 626 S.W.2d 935.

         Lewis cites State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997), in support of his argument to reverse the circuit court's ruling. In McFadden, this court affirmed the circuit court's grant of the defendant's motion to suppress, holding that the officer's pursuit with blue lights flashing, a stop of the defendant's vehicle, and a request for the defendant to accompany the officer to another person's home "went far beyond the sort of encounter authorized by Rule 2.2; it became a seizure such that a reasonable person in that situation would not have believed he was free to leave." McFadden, 327 Ark. at 23, 938 S.W.2d at 800. We concluded that "this was not a situation where the officer merely approached two men on a public street and asked if they would provide information." Id., 938 S.W.2d at 800; cf. Thompson v. State, 303 Ark. at 410, 797 S.W.2d at 452 (affirming circuit court's denial of suppression motion under Rule 2.2 because no seizure took place when the officer did not restrain the liberty of the driver or show authority by exhibiting a weapon or ordering the driver out of the vehicle).

         Lewis's reliance on McFadden is misplaced because the nonseizure encounter was permissible under Rule 2.2. Here, the circuit court denied Lewis's motion to suppress, ruled that the officer's questioning was proper under Rule 2.2, and found that the cell phone had been properly seized pursuant Rule 10.2. Specifically, the circuit court provided the following rationale as the basis for its ruling:

Swaggerty was not approaching a random individual standing on a street corner "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 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. . . . 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 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. . . . Once Swaggerty had initiated law 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.

         We agree with the circuit court's ruling. Swaggerty knew that Carter had been missing for three days. He knew that Lewis and his car matched the description of the man and vehicle seen at the home where Carter had disappeared. He also knew that the TextMe account had been registered to Lowery. After Lewis was involved in the car accident, the lieutenant approached him to determine whether he needed medical assistance and to inquire about his cell phone. The lieutenant's request that Lewis respond to questions about ...

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