APPEAL
FROM THE SEVIER COUNTY CIRCUIT COURT [NO. 67CR-17-116]
HONORABLE CHARLES A. YEARGAN, JUDGE
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 (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 ...