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Jemison v. State

Court of Appeals of Arkansas, Division IV

October 23, 2019

CHAVEL TERELL JEMISON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-17-94] HONORABLE CARLTON D. JONES, JUDGE

          Short Law Firm, by: Lee D. Short, for appellant.

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

          MEREDITH B. SWITZER, JUDGE

         Chavel Jemison was tried by a jury and found guilty of the offenses of commercial burglary and aggravated robbery. He was sentenced to 660 months in the Arkansas Department of Correction, which included an enhancement of 180 months for use of a firearm in the commission of a felony. In this appeal, he contends the trial court erred: (1) in denying his motion to suppress evidence obtained from the vehicle; (2) in permitting hearsay testimony; and (3) in permitting a tainted in-court identification. We affirm.

         On January 9, 2017, two incidents of aggravated robbery and commercial burglary involving two suspects occurred at two different convenience-store locations in Texarkana. Jemison and another young man were arrested. Jemison does not challenge the sufficiency of the evidence supporting his two convictions. It is therefore unnecessary to develop the facts extensively except as they relate to the specific arguments raised.

         I. Motion to Suppress

         For his first point of appeal, Jemison contends the trial court erred in denying his motion to suppress evidence obtained from his vehicle, specifically two packages of Newport cigarettes, because (1) the warrant was a general warrant; (2) alternatively, the cigarettes were outside the scope of the warrant; (3) the warrant was an unjustified nighttime warrant; and (4) reliance on the doctrine of inevitable discovery was erroneous.

         Generally, when reviewing a trial court's denial of a motion to suppress evidence, the appellate court conducts 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 the inferences drawn by the trial court. Bathrick v. State, 2016 Ark.App. 444, 504 S.W.3d 639. Here, however, Jemison no longer challenges the underlying probable cause to support the search warrant. Instead, his basic challenge is to the language of the search warrant itself-arguing overall that the language is too general and therefore does not satisfy the particularity requirement of the constitution. Alternatively, he argues even if the search warrant was "particular" enough, the Newport cigarettes fell outside the scope of the warrant. He then further argues that the warrant allowed for an unjustified nighttime search and that the trial court erred in relying on the inevitable-discovery doctrine.

         In Groh v. Ramirez, 540 U.S. 551, 559 (2004) (quoting Massachusetts v. Sheppard, 468 U.S. 981 (1984)), the Supreme Court explained the Constitution's particularity requirement for search warrants:

The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional. That rule is in keeping with the well-established principle that "except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant."

(Citations omitted.) Rule 13.2 of the Arkansas Rules of Criminal Procedure provides, in part: "(b) The warrant shall state, or describe with particularity: . . . (iv) the persons or things constituting the object of the search and authorized to be seized[.]" (Emphasis added.) While both the Constitution and Rule 13.2 (b)(iv) require that a warrant describe objects with particularity, highly technical attacks on search warrants are not favored lest police officers are discouraged from obtaining them. Watson v. State, 291 Ark. 358, 724 S.W.2d 478 (1987). The tension therefore lies between the constitutional requirement for particularity and the judicial recognition that reviewing courts should not be hypertechnical in assessing the validity of a search warrant.

[T]here is now being concealed, conducted, or possessed, namely guns, ammunition, clothing, currency, ammunition (live and spent shells), cellular phone, electronic devices, blood, and trace evidence as well as any other items that may contain blood transfer or trace evidence, as well as paraphernalia associated with the possession of evidence of Attempted Capital Murder and Aggravated Robbery, and any articles thereof, including, but not limited to, books, records, currency, electronic devices, and articles of identification, which are being possessed . . . and as I am satisfied that there is probable cause to believe that the property so described is being concealed in the vehicle above described [white 2000 Lincoln Town Car four door passenger vehicle bearing Texas license plate # GZG-3933] and that the foregoing grounds for application for the issuance of the search warrant exist.

(Emphasis added.) It is undisputed that the search warrant did not specifically list cigarettes, much less Newport cigarettes. To be covered by the search warrant, therefore, the cigarettes would have to fall within the emphasized language. Jemison contends the search warrant was so generalized that it encouraged the officers executing it to use their discretion and "effectively seize anything they desired," thereby rendering the entire warrant invalid. Detective Kirkland candidly acknowledged that "trace evidence" could mean nearly anything that had or was believed to have fibers or DNA and that "paraphernalia associated with the possession of evidence of Attempted Capital Murder ...


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