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 ...