Lewis Order

ELECTRONICALLY FILED Pulaski County Circuit Court Larry Crane, Circuit/County Clerk

2015-Dec-09 16:48:10 60CR-14-3928 C06D04 : 29 Pages

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS FOURTH DIVISION PLAINTIFF

STATE OF ARKANSAS

cR 2014-3928

VS.

DEFENDANT

ARRON LEWIS

ORDER

Comes now for consideration the pleadings argued at the omnibus hearing held

November 16,2Ol5,and based upon a review of the case file, the pleadings of both parties, the Court DOTH arguments submitted to this Court by brief, and all other matters considered, the FIND: firearms by The Defendant is charged with capital murder, kidnapping, and possession of these have already certain persons. The defense has filed multiple motions and petitions. Some of

The following motions been disposed of by an Order entered by this Court on october 6,2015.

Court: were sgmmarily granted, withdrawn by the Defendant, or deferred by the

evidence from a Fuji The State has indicated that they do not intend to introduce physical camera. This motion is hereby granted.

Motion to Suppress Phvsical Evidence from Faultv Warrant for Black IBM LaDtoI) from the The State has indicated that they do not intend to introduce physical evidence black IBM laptop. This motion is hereby granted'

Court hereby The parties agreed at omnibus that this Motion is currently premature. The defers ruling on this Motion, as it is not yet ripe for a ruling'

in the case to The State has indicated that they will amend the criminal information filed indifference to the value add the necessary language: "under circumstances manifesting extreme of human life." The Motion is hereby granted'

Motion in Limine to Exclude Testimonv about cement Dust Pursuant to D,Iu',e" testimony about The State has indicated that they do not intend to introduce expert cement dust. This Motion is therefore granted'

testimony about cell The State has indicated that they do not intend to introduce expert phone tower pings. This Motion is therefore granted'

Motion in Limine to Exclude Emails and Text Messaees Allesedlv Sent bv Arron Lewis The State has been put on notice that any evidence of this nature will require authentication pursuant to Rule 901 of the Arkansas Rules of Evidence. Defendant

will inform

this Court the morning of trial whether they object to specific exhibits of this nature in the State's

exhibit list. The State will be given an opportunity to lay a foundation for the introduction of any disputed statement prior to trial, and this Court will make a ruling.

Motion to Return Watch Seized from Defendant The Defendant argues that the watch in question was seized illegally and that it should be returned to the Defendant. The State has responded that

it

has not made a determination

regarding whether the watch will be used as evidence. They request that the Court postpone any order to return this item until after trial under Ark. R. Crim. Pro. 15.2(d). Absent any showing

that this item is contraband, the Court agrees that the Defendant is eventually entitled its retum. The Court hereby defers ruling on this Motion at this time and will re-visit the matter after evidence has been presented in the case.

Motion to Return Gatewav Laptop Seized from Defendant The Court is presented with the same issues and arguments as the watch (discussed immediately above). The Court

will similarly defer ruling on this Motion

visit the matter after evidence has been presented in the case.

at this time and

will re-

Motion to Return iPad Seized from Defendant The Court is presented with the same issues and arguments as the watch and Gateway laptop (discussed immediately above). The Court

will similarly defer ruling on this Motion at

this time and will re-visit the matter after evidence has been presented in the case. The Court's ruling on the following Motions are based on the evidence presented at omnibus, the argument briefs submitted by the parties, the files and records of the case, and all other matters considered:

The Defendant seeks to have this Court suppress any evidence obtained by subpoenas issued in this case to phone and

Sheriff s Department

-

IT companies. Investigator Jeff Allison of the Pulaski County

Criminal Investigative Division testified at the omnibus hearing that,

after the disappearance of Beverly Carter had been reported, they made an exigent circumstance request to

AT&T to procure her cell phone and SMS data records. Once they had

records, they noticed that the victim had recently been in frequent contact

text messages

- with a phone number with a New York area code. Having

-

access to those

both phone calls and

access to the

victim's

history Apple iCloud account, they noticed that this phone number was one of the few in her call phone number not identified with a known associate. The investigators discovered that this same the number and was written on an envelope in the victim's car. one of the investigators called They then, discovered it was a'ospoof number" associated with a Google app called TextMe.

with the aid of prosecutors, made an exigent circumstances request to Google to obtain the call log of the TextMe number. They were able to thereby determine that the phone number was created by an account of the Defendant's wife, Crystal Lowery'

The Defendant has alleged that the information received by the investigators in this power. The Defense manner should be suppressed as an oveffeach of the prosecutor's subpoena The is right that the prosecutor has no power to issue subpoenas in a criminal investigation. even Court, however, need not decide whether this alleged overreach was illegal. Because

to aid the assuming arguendothat the prosecutors improperly allowed the use of their subpoena police investigation, the Defendant has no standing to challenge these subpoenas, and their arguments suppression would not be the proper remedy. The Defense and State both base which telephone on State v. Hamzy, 2gg Ark. 561 (1986), a case originating out of this Court, in now were records obtained by prosecutorial subpoenas such as the ones before the Court challenged. The Defense correctly notes that the Hamzy Court found that prosecutors improperly be produced for the abused their subpoena power when they commanded that telephone records

police. They omit, however, the actual holding of the case. Hamzy held that, prosecutorial telephone records. misconduct aside, a defendant had no legitimate expectation of privacy in his had no standing to There was, therefore, no Fourth Amendment violation, and the defendant challenge the introduction of the records. Id, at 565. Finding that

"[t]he proponent of a motion to

rights were violated by suppress has the burden of establishing that his own Fourth Amendment this court's the challenged search or seizure[,]" the Hamzy court reversed and remanded decision with instructions to deny the motion to suppress' Id, at 565-566' (1981) and Foster v' The Defendant cites additionally to Cook v. State , 27 4 Ark- 244 State, 285

fuk. 363 (19S5). In Cook, the prosecutor convened a pretrial conference, having

presence of each other and without subpoenaed witnesses, and questioned many witnesses in the

this questioning without the presence of the defense. The Arkansas Supreme court found that

of the others" cross-examination could "lead a recalcitrant witness to a desired answer in front during the trial. and deny the accused a fair trial when they "parroted" the previous answer again Cook, suprq at248-249.

for In Foster, the prosecutor used their subpoena power to procure a witness's presence police questioning, arriving at a witness's home late at night and telling the witness that the not prosecutor wanted to see her. The police proceeded to question her, and the prosecutor did merely participate meaningfully in that questioning. Finding that the prosecutor's subpoena was held that a,.guise to let the offrcers detain her and interrogate her," the Arkansas Supreme Court this violation directly tainted the statement she gave to the police should have been suppressed. Foster, supra at 367 -368.

Neither of these cases are analogous to the facts at bar. The actual subject matter of the overreach, testimony and statements in both of those cases were influenced by the prosecutorial

right to a fair to the extent that admitting them would have violated the respective defendants' into trial. The reliability of the information obtained by the subpoenas before us is not called has made question by the actions of the prosecutor. Furthermore, like in Hamzy, the Defendant

Court has been no argument that these subpoenas violated his Fourth Amendment rights. This them. The given no law that can be read to support suppression of the evidence obtained by

Motion is therefore denied.

At the time of the Defendant's vehicle accident, Pulaski County Sheriff

s Department

it to be registered to Lieutenant Mark Swaggerty seized a cell phone from the Defendant, finding a phone number they

knew was associated with the disappearance of the victim. (see analysis

6

and should be infra). The Defense has argued that the cell phone was not subject to seizure

being held and returned to the Defendant under Ark. R. Crim. P.15.2,1ike the items currently phone as evidence' As discussed above. The State has indicated that they intend to use the cell Physical discussed in the Court's decision regarding the Defendant's Motion to Suppress pursuant to Ark' R' Evidence from Vehicle Accident (below), the cell phone was lawfully seized denied. Crim. pro 10.2. The Defendant's Motion to Return the Cell Phone is, therefore,

Motion to Supnress Phvsical Evidence from Faultv Warrant and IlIeEal Search at 165 Randall Dr. Jacksonville. AR In the course of the Pulaski County Sheriff Department's investigation into the white male driving a disappearance of the victim, they had received information that a slender car was found' As black passenger vehicle had been spotted at the address where the victim's

the account of the codiscussed above, once the investigators had tied the TextMe number to

Dr' in Jacksonville' Defendant Crystal Lowery, they began surveilling her home at 165 Randall later determined to be In the course of that investigation, they observed a slender white male the Defendant

-

exit the residence and leave in

a

black passenger vehicle' Again, soon after, the

and were able to investigators discovered that the Defendant was involved in an accident had been used to contact determine that the Defendant was in possession of the cell phone that

to the hospital, where he left the victim prior to her disappearance. The Defendant was taken

without notice to the doctors or medical staff during tests. pulaski County Investigato

r

Zachary Warren testified that he prepared an affidavit to

signed by Pulaski County obtain a search warrant for the Randall Dr. home. That warrant was

by the District Court Judge Wayne Gruber on Septemb er 28,2074, and it was executed

investigators that day. The affidavit prepared by Warren recited, in essence, the timeline above and alleged reasonable cause to believe that

THERE IS BEING CONCEALED AT THIS TIME POTENTIAL PROPERTY/EVIDENCE, TO WIT: l) CLOTHING 2) PERSONAL PROPERTY BELONGING TO THE VICTIM 3) SHELL CASINGS, 2) (sic) PROJECTILES, 3) FIREARMS, 4) AMMUNITION, 5) DNA

AND BIOLOGICAL EVIDENCE,6) HUMAN REMAINS, T) ANY ELECTRONIC EQUIPMENT AND MEDIA STORAGE, 8) ANY ITEM THAT COULD BE USED AS A WEAPON TO INCLUDE, KNIVES AND BLUNT FORCE OBJECTS, 9) ANY OTHER PHYSICAL EVIDENCE AND INSTRUMENTALITY,S (SiC) OF CRIMINAL ACTIVITY CONTRIBUTING TO THE FURTHERANCE OF A CRIME; TENDING TO DEMONSTRATE THAT A POTENTIAL CRIMINAL OFFENSE MAY HAVE BEEN COMMITTED RELATED TO THE DISAPPEARANCE OF BEVERLY CARTER. AS THERE EXIST (sic) REASONABLE CAUSE TO BELIEVE THAT THE ABOVE FACTS AND CONDITIONS DO EXISTS (sic), A SEARCH AND SEIZURE WARRANT SHOULD BE ISSUED. (State's Ex. l)

The language of the search warrant signed by Judge Gruber directed law enforcement to search for these same things using the same language as the

affidavit.

Warren testified that the search began at 2:35PM and took approximately one hour. They discovered and seized various items, including the victim's cell phone, a Gateway laptop, assorted

jewelry,

a

white envelope with Google numbers written on it, multiple firearms, and a

a credit card reader. The defense alleges that this warrant was overbroad, essentially becoming

.,general warrant," giving officers free reign to search for and seize any item that could

conceivably be related to any criminal activity. When asked whether the warrant allowed the investigators to search for any clothing or them to simply the victim,s clothing, Warren testified that the warrant would have authorized had no reason to seize any clothing. When asked about shell casings, Warren admitted that they

know at know whether shell casings would be present at the home. He testified that, "we didn't the time. We didn't know how the crime was committed, what acts, whether

it was by firearm or

would any other weapon." He similarly admitted that they had no reason to know whether there to seize be firearms, projectiles, or arnmunition at the home, though the warrant authorized them 8

clothing, any objects of that type. When asked about DNA, biological evidence, human remains, or personal property, Warren responded that the investigators had no idea at the time

of

the executing the warrant whether evidence of that nature would be present, or indeed whether

victim had ever been taken to the residence. He testified that they also had no reason to know phone (that whether there would be any electronic evidence located in the home, aside from a

TextMe app. had already been seized) that could conceivably allow access to the aforementioned Regarding the directive to search for "any item that could be used as a weapon,"

'Warren

testified

that investigators had no evidence that a weapon had even been used, and specifically nothing

of

the type (knives and blunt force objects) anticipated by the warrant.

Warren testified that the offrcers interpreted the warrant as authorizing them to seize anything that could demonstrate that a potential criminal offense may have been committed asked the relating to the disappearance of the victim. During cross-examination, the defense

investigator investigator, "Is there anything in that residence that you couldn't have taken?" The answered that they would have been permitted to seize any item "[a]s

it pertains to the

jewelry without disappearance of Beverly Carter." He admitted that the investigators seized that they were knowledge that it was the victim's, that they took a credit card reading device seized multiple firearms unsure had any connection to the victim's disappearance, and that they

that they had no indication were connected to the investigation. and seizures must be One of the basic concepts of the Fourth Amendment is that searches ..reasonable.,, The Amendment itself states that "no Warrants shall issue, but upon probable cause, supported

and by Oath or affrrmation, and particularly describing the place to be searched

the person or things to be seized." U.S. Const., amend.

IV. The critical element in a reasonable

search is not that the owner of the property is suspected

of crime but that there is reasonable

cause to believe that the specific

'things' to be searched for and seized are located on the

property to which entry is sought. Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978). Valid warrants to search property may be issued when it is satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises. Id, at 559. The Supreme Court has often stressed that "searches deemed necessary should be as

limited as possible." Coolidge v. New Hampshire, 403 U.S. 443,467 (1971). A broad warrant lacking specificity is analogous to "the 'general warrant' abhorred by the colonists, and the problem is not that of intrusionper se, but of a general, exploratory rummaging in a person's belongings . . . tA limited warrant prevents this] by requiring a'particular description' of the things to be seized" Id.

This specificity has long been central to Fourth Amendment jurisprudence. "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing

another. As to what is to be taken, nothing is left to the discretion of the officer executing the

warrant." Marron v. United States, 275 U.S. 192,196 (1926). The warrant challenged by the defense is unquestionably a general warrant in direct

violation of the Fourth Amendment. The warrant itself listed no particular item believed to be located at the address in question

-

it simply listed

a broad category

of things that might be

investigators' considered evidence or lead to the discovery ofadditional evidence, based on the theory that the victim had been kidnapped and/or murdered'

Reviewing Investigator Warren's testimony at the omnibus hearing, it is clear that the His ultimate discretion of what items to search for and seize was directly left to the investigators. in the testimony confirmed to this Court that investigators ultimately could have seized anything

10

building if an argument could be made that it fell within the "nine categories"l specified in the warrant. The broad discretion granted them is firther demonstrated by the fact that the

of the investigators seized multiple items that, though they may be either contraband or evidence commission of some other crime, have no evidentiary value in this case'2 The State argues that the search at 165 Randall should be held valid as it "did not exceed not exceed the the scope of the search warrant." The Court would agree that the search itself did scope of warrant,s scope, but it is left to the Court's imagination what actually would exceed the

to (and the warrant executed in this case, considering the amount of discretion delegated exercised by) the investigators.

Nor is the Court convinced by the State's argument that the Motion to Suppress should be case, the United denied based on the Leon good-faith exception to the exclusionary rule. In that

the exclusionary rule States Supreme Court held that evidence could be admitted notwithstanding on a search where it is shown that officers executing a warrant acted in reasonable reliance

by warrant issued by a detached and neutral magistrate but ultimately found to be unsupported

brief probable cause. United States v. Leon, 468 U.S. 897 (1984). The State has asserted in their the testimony of the that the investigators were acting in reasonable reliance on the warrant, but

affidavit and the investigators in question tells a different story. Investigator Warren created the warrant itself, which mirrors the language in their affidavit

- typos

and all. To be sure, the

job and the public pressure of a highinvestigators were operating under the demands of their

I Actually eleven, owing to the typos in the affidavit and warrant and conhscated multiple firearms in the home, as of an well as a ciedit card readei, something the investigators speculated was an instrument that these items identity theft scheme on the part of thi Defendant. The State has not suggested are part of its case against the Defendant.

, eor.*u*ple, the inveJtigato., dir.orc.ed

11

within the profile investigation, but to say that they acted with such good faith as to come protection of Leon strains credulity. We are aware The Court would emphasize that it does not come to this decision lightly.

to the alleged that this search resulted in the discovery of evidence directly linking the Defendant was created as a kidnapping and murder of Beverly Carter. The exclusionary rule, however,

to repair. Its purpose is to deterrent to law enforcement. "The rule is calculated to prevent, not deter

-

in the only to compel respect for the constitutional guaranty [of the Fourth Amendment]

effectively available way

- by removing the incentive

to disregard it." Elkins v. U.S. 364 U'S'

was blatantly 206,217 (1960). The particularity requirement of the Fourth Amendment

to Suppress all evidence disregarded here, and the Court hereby grants the Defendant's Motion obtained as a result of the illegal search of 165 Randall'

and

observed the During the aforementioned surveillance at 165 Randall, investigators

Fusion' Knowing that the Defendant exiting the home and leaving in a Black 2012 Ford at the location where the Defendant and vehicle matched the description of the individual seen

Swaggerty to trail the victim's car was discovered, investigators radioed Lieutenant Mark

in the Jacksonville area' He Defendant. He did so in an unmarked car, following the Defendant that the Defendant's lost sight of the vehicle at a corner, and when he turned, he discovered

, tt.r*-" Court will

the largely involve the same factual narrative. For the purpose of clarity, analyze them in concert.

*ota*

12

vehicle had been involved in an accident and was lying on its side in a ditch, with the Defendant was climbing out of the driver's side door. He approached the scene, observed that the Defendant

injured, and asked him if he needed help. The Defendant responded that he did, so Swaggerty called an ambulance to the scene. The Defendant, in Swaggerty's words, was "pacing around, in the road there, fumbling around. He had his phone in his hand, and he got in the ambulance." [at 42] While the phone number. emergency personnel was examining him, Swaggerty asked the Defendant for his

At first, the Defendant gave him

a false number

-

a number one

digit off from the number that

investigators knew was tied to the TextMe account and had allegedly been the last phone number

to contact the victim prior to her disappearance. Surmising "he might not be telling the truth on

it,,' Swaggerty asked him to call his own (Swaggerty's) cell phone so that the lieutenant would question, and have the phone number. The Defendant then repeated the exact phone number in arrest Swaggerty confiscated the phone from him. He was not, at this time, mirandized or under

in custody. according to Swaggerty. The Defendant was then taken to the hospital. He was not He later left the hospital without notiffing medical staffduring tests and was not apprehended

until

Septe mber 29, 201 4.

Investigator Jordan Ables created an affidavit to obtain a search warrant for the vehicle County Sheriff s on Septemb er 28,ZOl4.At this point, the vehicle had been towed to the Pulaski necessary "given the Office. Ables testified that a search warrant for the vehicle was found to be and the information based upon the motor vehicle accident, search warrant [for the home]

warrant for information obtained[.]" Ables swore out the affrdavit and presented the search The warrant specified signature to Judge Gruber, as Investigator Warren had done previously. categorical list that there was reasonable cause to believe that the vehicle contained the same

13

of

potential evidence as specified in the search warrant for the home at 165 Randall. The search of the vehicle led to the discovery of white rope, green duct tape, and some handgun shells in a

white bag, as well as some items such as the Fuji camera and IBM laptop discussed above. For the Defendant's first motion, it would seek to suppress any evidence obtained as a result of Swaggerty's questioning of the Defendant at the scene of the accident, describing the exchange between Swaggerty and the Defendant as an "illegal encounter under Arkansas Rule

of

Criminal Procedure 2.2." The State argues that the questioning was proper under Rule 2'2 and that the phone was properly seized under Rule 10.2. Rule 2.2 states that "[a] law enforcement officer may request any person to fumish

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." The defense argues that the encounter between Swaggerty and the Defendant does not

fall within the purview of Rule 2.2, argting that the lieutenant was investigating a "missing person," and not involved in the prevention or investigation of crime. They offers multiple cases

for this proposition, all of which are distinguishable from the facts at bar. In Jennings v. State, 69

Ark.App 50 (2000), the appellant and an acquaintance were standing at an intersection in a known drug trafficking area. A sheriff s deputy approached the defendant and asked him for identification. The deputy then saw a flask in the acquaintance's coat pocket and confiscated it, as the acquaintance was a

minor. The deputy asked if the pair had any weapons, to which they

responded "no." The deputy did a pat-down search, found a gun on the appellant, and when

backup arrived, cocaine was found in his possession. Citing Stewart v. State, 332 Ark. 138

l4

of

(1998)4, the Arkansas Court of Appeals found that the officers had no reasonable suspicion

criminal activity to request information from the defendant under Rule 2.2 - he was simply "in the wrong place at the wrong time."

The defense also cites State v. McFadden,327 Ark. 16 (1997), for the proposition that the Defendant's encounter with Swaggerty was improper under Rule 2.2. In McFadden, while investigating the report of a missing juvenile girl, a police chief received information from her father that she was likely with her boyfriend, the appellant. The chief and the girl's father were

patrolling likely spots where the two might be, saw the appellant's car, and pulled it over. The chief saw what appeared to be a sawed-off shotgun in the vehicle, seized it, and found what appeared to be methamphetamine in the butt of the gun. The appellant moved below to suppress

the contraband, as the chief testified at trial that when he stopped the car, he had no information that would suggest that a felony had been commiffed, was being committed, or was about to be committed. His motion was denied, but the Arkansas Supreme Court found that the evidence should have been suppressed, as the chief s stop of the vehicle constituted a seizure of the defendant and was unreasonable considering no allegations of criminal activity were made.

The facts at bar are distinguishable from the facts of Jennings and Stewart. In both

of

those cases, police officers in cars approached individuals standing on the street, and the court

found that, there being no reasonable suspicion of criminal behavior on the part of the

individuals and no specific crime being investigated or prevented, the questioning by the officers was improper. Here, Swaggerty was not approaching a random individual standing on a street

comer "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

a

Also cited by the Defendant for this proposition. 15

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. The only way this case is similar to McFadden is the presence of the words'omissing person." The police chief in McFadden admitted that he had no information thata crime had been or was going to be commiued. He also testified that he directed the appellant to exit the

vehicle and accompany him to one of their homes so he could search the home for the missing

girl. The defense says the facts of McFadden are "almost identical to the facts of this case," but the comparison is tenuous at best. There was suspicion that the missing person in that case was possibly with the appellant, but a rural police chief assisting a disapproving father with locating his daughter is not the same situation as what we have here

-

at this point, a days-long

investigation by the Pulaski County Criminal Investigative Division. Here, Swaggerty and the other investigators had information that tied a person matching the Defendant's description, the vehicle he was driving, and the home he was leaving to facts surrounding the disappearance of the victim. Following the Defendant as part of his legitimate surveillance of a person of interest in the case, Swaggerty came upon the Defendant's car, which not had been involved in an accident. Swaggerty never indicated to the Defendant that he was Defendant free to leave or demanded that he answer any questions. He simply asked whether the

law needed medical assistance and asked him for his phone number. Considering that request enforcement now had a wrecked, uptumed vehicle to contend with, this was a reasonable

if only to maintain a means of contact with the Defendant. He was not accompanied by law enforcement to the hosPital.

t6

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 defense would have us follow McFadden because that court found that the missing person investigation was not "investigation or prevention

of

crime." But the chief in that case admitted that he had no suspicion that a crime had been committed. 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.

The defense would have us find that the encounter between Swaggerty and the Defendant did not

fall within the scope of Rule 2.2because Swaggerty said on the witness stand that the Defendant was not yet a suspect at the time of the encounter.5 Rule 2.2 does not require this. The defense

would also have us find that a missing person investigation by law enforcement is not an investigation of or prevention of a crime. The only authority given for this proposition is McFadden, which does not hold this. Swaggerty's encounter with the Defendant and his questioning of him was proper under the Rules of Criminal Procedure. Once Swaggerty had initiated lawful 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. Considering that the questioning of the Defendant was proper under Rule 2.2 and the answer

Swaggerty's testimony was contradicted by Investigator Ables, who specifically referred to the Oefendant as a "suspect' atthe time of the Randall surveillance, but the varying terminology used to describe him by investigators is irrelevant. s

t7

given by the Defendant put Swaggerty on alert that the number of the phone in the Defendant's possession was related to the disappearance of Carter, this Court finds that

it was properly seized

under Rule 10.2.6 The Motion to Suppress Physical Evidence from the Vehicle Accident is

therefore denied. We turn now to the Motion to Suppress Physical Evidence from Faulty Warrant for 2012

Black Ford Fusion. Here the same language was used as the warrant for the home. Investigator Jordan Ables of the Pulaski County Sheriff s Office prepared the affidavit and search warrant. He testified that he presented Judge Gruber the search warrant, and that the judge agreed to it and signed it. Ables testified that he "typed every, everything in

it because of the nature of the case. I

did not want to just put a generic, anything generic in there."

7

But Ables' testimony was largely

the same as Warren's, discussed supra. Like Warren, he indicated that he really had no reason to

know whether specific items were going to be found there, outside of clothing that the victim's husband had indicated she was likely wearing at the time of her disappearance and possibly a phone that could access the TextMe app.8

For the sake of brevity, the Court will not duplicate its discussion concerning the warrant

for the search of 165 Randall, but all that analysis would also apply to this warrant. The investigators created the affidavit and warrant, giving themselves maximum possible leeway to search for any item that could conceivably be tied to the disappearance of the

victim. Though the

investigators had the added benefit of knowing that the Defendant had been found with the

The defense has not addressed Rule 10.2 in their initial Motion or their post-omnibus argument brief. The Motion itself asserts only that the encounter between Swaggerty and the Defendant was a warrantless search and seizure in violation of the Fourth and Fourteenth Amendments. 7 On the contrary, the language from the search warrant for the Fusion seems to have been copied and pasted frornthe language in the search warrant created by Investigator Warren for the home, down to the Wpos and the incorrectly numbered list of categories of evidence to be sought. 8 Again, this phone was already in the authorities' possession. 6

18

the phone registered to Crystal Lowery, the question is less about probable cause and more about

in violation breadth of the warrant. Like the warrant for the home, this was a general warrant the Fourth Amendment, and the fact that

of

it was presented to Judge Gruber without further

instruction from him removes it from any Leon good faith exception. The defense's Motion to Suppress is therefore granted.

It should be pointed out that the record is silent

as to whether an

done on the Defendant's vehicle between the time when and the point where the

inventory search was

it was towed away by the investigators

invalid search warrant was executed. There is an'oinventory search"

a exception to the warrant requirement. "Pursuant to this exception, police officers may conduct

warrantless inventory search of a vehicle that is being impounded in order to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Benson v. State,342 Atk.684, 688.

If

the State can show that any items found in the vehicle that they seek to introduce were discovered during an inventory search and not during the search pursuant to the illegal warrant,

this Court will consider admitting them into evidence. Without that showing, all evidence found in the vehicle is to be suPPressed.

Evans After the Defendant had left the hospital without notifying staff, Investigator Drew and of the pulaski County Sheriff s Offrce created an affrdavit and warrant for his arrest presented it to Judge Gruber. Gruber signed the warrant, and investigators began searching a report

of a suspicious

the Defendant.

officers from the Little Rock Police Department received

person in West

Little Rock, and they responded to Pleasant Pointe Apartments. When they

r9

for

arrived, a group gathered there advised them that the Defendant, whose picture had now been made available to the public, had entered the complex's clubhouse. Officers then saw him sitting

in a second-story window near the courtyard of the building. The Defendant jumped from the window, and one of the officers apprehended him. Officer Nellis of the LRPD transported the Defendant to the pulaski Cotrnty Sheriff s Office, and when he was transferred to the custody

of

the sheriffs, the Defendant'orefused medical treatment and requested an attorney" in the presence

of Officer Roy of the LRPD. This information was not conveyed to the Pulaski County Sheriff Investigators but was noted in Officer Roy's report. Defendant's Ex. 1. The Defendant was then taken to an interview room by the sheriff s investigators. He was informed that he had been arrested on a kidnapping warrant, and they read him Miranda rights over his objection that he did not need to hear them. The Defendant was given a form where he could indicate that he either understood his rights or waived them. He refused to sign either

portion of the form. State's Ex. 4. At this point, no audio had been recorded, but soon thereafter, the investigators began taping the encounter. The Defendant argued with the investigators, saying that he either wanted to be taken to a room without a camera or be provided with a

lawyer. Operating under the belief that he had waived his rights and that his ultimatum about being moved was not an unequivocal request for an attorney, the investigators continued interrogating him. He was eventually moved to Lieutenant Swaggerty's office, where recording equipment

him further. was also installed, unbeknownst to the Defendant. The investigators interrogated he played a The Defendant was then given access by the investigators to his iPhone, whereupon stated, message that had been recorded by Beverly Carter to her husband. The message

"Carl, it's

Beverly. I just want to let you know I'm okay. I haven't been hurt. Just do what he says, and

20

please

don't call the police. If you pall the police, it could be bad. Just want you to know I love

you very much." The investigators requested he play it again, but he refused to do so' The Defendant began telling the officers that he wanted to provide them information, but that he would only do so if he were charged in federal court. The investigators contacted an FBI agent, Agent Steve Burroughs, who came to the office with a U.S. Attorney. Agent Burroughs

joined the investigators in the interrogation, and he read the Defendant his Miranda rights again. The Defendant then signed a form indicating he had been read his rights and was aware that he

did not have to continue speaking without the presence of an attomey. State's Exhibit 13. The interrogation continued. The Defendant refused to give details about the alleged kidnapping unless Agent Burroughs assured him he would be tried in federal court. The agent repeatedly stressed that he had been given no information that would indicate that federal charges were warranted, and the Defendant, investigators, and agent argued for some time about

this. They eventually came to a stalemate, the questioning ceased, and the Defendant was taken back to the interview room where the interrogation first began. Sergeant Mike Blain of the PCSO testified that sometime after the interrogation ended

Defendant and the Defendant was retumed to the interview room, the investigators heard the

.,yelling,' that ..[h]e wanted to talk to that FBI guy and the sheriff s guy again." The investigators to speak to entered the interview room, where the Defendant was still shouting that he wanted deputies to some the FBI agent. The Defendant told the investigators "that he was willing to take a vehicle and locations,, where the victim had been. The investigators placed the Defendant in

related details traveled to multiple locations in Pulaski and Saline Counties, while the Defendant to the of the victim,s kidnapping. The victim was not found at these locations, and they retumed and interview room. Investigator Allison advised the Defendant that his rights were still valid,

21

the Defendant responded that he understood this to be the case. Eventually the investigator

mentioned something about the Argos Concrete Plant in Cabot, a former employer of the Defendant.e The Defendant made a comment about having'oput her in a mixer." The investigator asked him another question about Argos, and "[h]e

just leaned back in the chair and said

lawyer." The investigators then ceased all communication with the Defendant. The State introduced a great deal of testimony regarding the Defendant's purported waiver of his rights with the investigators both when he arrived at the Sheriff s Office and when Agent Burroughs was present. The defense has cross-examined the investigators in detail about the statements he made indicating that he would not talk unless he was moved to another room or given an attorney. This Court, need not decide whether the Defendant waived his rights or requested an attorney at the beginning of his interrogation by the investigators. Even assuming

that this request was equivocal and ambiguous, as the State asserts, the Defendant's earlier request to speak to an attorney was unambiguous.

The Defendant introduced the arrest report created by Offrcer Cedric Roy of the LRPD. Defendant's Ex. 1. In that report, Officer Roy indicates that the Defendant requested an attorney when he was transferred to the custody of the Sheriff. Officer Roy did not convey this

information to the Sheriff s investigators. The State did not call Officer Roy as a witness, but they also did not dispute the authenticity of the report or the facts contained therein. The Court finds the information contained in the report credible and finds that this request by the Defendant at the time of transfer

from LRPD to PCSO constituted an assertion of his right to have an

attorney present during interrogation.l0 Once an accused has expressed his desire to deal with the

e

This is where the victim was eventually found.

l0 The Defendant also took the witness stand at the omnibus hearing and asserted that he made a request to speak to an attorney to the LRPD. The Court wishes to stress that it finds the

22

police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless he himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona 451 U.S. 477,484-485 (1981). See also Wedgeworth

v. State,374 Ark.373 (2008) (accused may waive his rights by initiating

further communication with the police...any resulting statements may be admissible') The Court finds that the introduction of any statements the Defendant made after he invoked his right to counsel in the presence of Officer Roy would be a violation of his right to an attorney under Edwards. The Court finds further that the Defendant's yelling for the investigators

to return was a voluntary re-initiation of communication with the investigators. The defense's Motion to Suppress Statements During Interrogation is therefore granted

with respect to any statements made between his invocation of his right to an attorney in the presence of Officer Roy and his re-initiation of contact with the investigators by

"yelling" and

requesting to speak to the FBI agent again. The Motion is denied with respect to any statements he made during interrogation after that re-initiation but before he said the word "lawyer" and the

investigators ceased communications with him.

Notwithstanding the Court's Order with respect to this Motion, the Defendant will not be permi1ed to use this holding to perjure himself should he choose to testify on his own behalf.. The parties are put on notice of the holding of Harris v. New York,401 U.S. 222 (1971). That case stands for the proposition that should a Defendant

testiff on his own behalf

at

trial, any

used statements or evidence that has been suppressed as violative of Miranda may nonetheless be

Defendant's testimony completely incredible. The Court bases its decision that the Defendant made a request to have counsel present during his interrogation solely on the material contained in the LRpD Offrcer's Report and gives absolutely no weight to the testimony of the Defendant. 23

to impeach him. The State will be permitted to introduce anything that has here been suppressed

for impeachment purposes should the Defendant take the witness stand.ll The State has further argued that the recording of the victim that the Defendant made and played for the investigators should be admitted despite the illegal interrogation of the Defendant. The State cites United States v. Patane, 542 U.S. 630 (2004) for its argument that the "fruit of the poisonous tree" doctrine only applies to testimonial evidence that would be admifted against a Defendant in violation of his Fifth Amendment rights. In Patane, the United States Supreme Court held that a failure to give a suspect a Miranda warning did not require suppression of the physical fruits of the suspect's unwarned but voluntary statement. The State's argument here is

well taken. Patane and its progeny show that where a suspect has been interrogated in violation of Miranda, only the testimonial fruit of that interrogation should be suppressed, and not physical evidence obtained as the

fruit of a voluntary statement. Accordingly,

as the

recording of the

victim is not testimonial, it does not run afoul of the constitutional rights sought to be protected by Miranda. The recording of the victim is admissible.

As a final matter, the State has requested that another hearing be held prior to trial to rebut the allegations made by Defendant during his testimony at omnibus that he was assaulted

by a reserve deputy in the bathroom prior to his interrogation by the Pulaski County Sheriff

s

investigators. The State cites cases such as Smith v. State,254 Ark.538 (1973) and various persuasive authority from sister jurisdictions for the proposition that once an allegation has been made that a confession was the result of coercion, the charge must be rebutted.

ll "It is one thing to say that the Government

cannot make an affirmative use of evidence unlawfully obtained. Ii is quite another to say that the defendant can turn the illegal method by which evidence in the Govemment's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. [Allowing this] would be a perversion of the Fourth Amendment." Harris, supra, at224. 24

The Defendant stated during cross-examination by the State that prior to his "yelling" for

FBI Agent Burroughs that he had been taken to the bathroom by Reserve Deputy Gary Siebel and that the reserve deputy beat him up. The Defendant asserted that the only reason he yelled to speak to Burroughs again was that he had been threatened and attacked. Defense attomeys did

not question the Defendant about this statement. This encounter has not been mentioned in any

of the Defendant's pleadings, in any of his statements to the media, or in any testimony elicited from any other witness. The Court is aware of the authority cited by the State, but it does not find the Defendant's testimony credible regarding this encounter. The Court

hearing on this matter but

will not grant the State a

will allow the State to revisit the assertion at the time of trial.

Motion in Limine to Exclude any Testimonv bv Crvstal Lowerv Concerning Communication Between Defendant and Lowerv During the pendency of this case, the Defendant's wife and co-Defendant, Crystal Lowery, pled guilty to first-degree murder and kidnapping of the victim. As part of that negotiated plea, she has agreed to provide truthful testimony against the Defendant at his trial. It is clear, and not disputed by the defense, that Lowery is a co-conspirator in this matter. The defense has moved this Court to bar the State from calling her as a witness, asserting that any

testimony she might provide against the Defendant would violate the spousal privilege

of

Arkansas Rule of Evidence 504. The State has responded that many of the statements made between the two were also provided to

-

or intended to be provided to - third parties. The State

argues further that 504(d) is an exception to the marital communications privilege with respect to

crimes committed against any third parties and that MacKool v. State, 365 Ark. 416 (2006) stands for the proposition that the Defendant has made so many statements to various parties

25

repeating allegedly confidential communications that he has waived privilege with respect to all

communications to his wife regarding the victim. To begin, the Court is not convinced by the State's interpretation of Rule 504(d). That section reads as follows:

(d) Exceptions. - There is no privilege under this rule in a proceeding in which one [1] rpo6. is charged with a crime against the person or property of (1) the other, (2) a child oleither, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them. The State reads subsection (4) as stating that any confidential communications a Defendant might make to his spouse regarding a crime against a third person cannot be considered privileged. Reading the subsection in that way would gut the entire privilege, as any

confidential communication sought to be introduced could be admitted, so long as it involved the Defendant committing a crime against a third person or their property. Under this interpretation, there could literally be no spousal privilege any time a Defendant is accused of a crime against any person or property. The Court declines to interpret the exceptions to the privilege in this

way. The subsection is indelicately worded, to be fair, but the only logical reading is that the .'third person" language describes a situation where the Defendant has attempted to commit a

in crime against the person or property of the other spouse, a child of either, or a person residing person or the household of either and in doing so inadvertently committed the crime against a

property of a third party.

Neither is the Court convinced by the State's argument that MacKool holds that a Defendant may disclose so many purportedly confidential communications that it would is constitute what would seem to be a "blanket waiver" of his spousal privilege. MacKool instead a

fairly typical marital privilege case that mechanically applies marital privilege and exemption

precedent to various statements made in that case. This case does support the settled proposition 26

that the privilege applies only to "communications,not to what the spouse heard, saw, and observed in relation to a criminal charge." MacKool, supra, at 446 (emphasis in original).

The privilege is also destroyed where the purportedly confidential communication is overheard by or meant to be shared with a third party. Arkansas Rule of Evidence 510 holds that

"[a] person upon whom these rules confer

a

if

privilege against disclosure waives the privilege

he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure

of any significant part of the privileged matter." Where the Defendant has shared information

with any third party that he alleges is a confidential communication, he has waived his privilege with respect to that statement, and it will be admitted. See, e.g., Dansby v. State, 338 Ark. 697 (1

999), MacKool, supra, at 447 -448.

Additionally, the Court is aware of and will apply the holding of United States v. White, 2009 U.S. Dist LEXIS 15906. That case notes that "the Eighth Circuit Court of Appeals has approved the Joint criminal

activity' exception to the privilege" ld, at27, citing United

States v.

Evans, 966F.2d398,401 (8th Cir. 1992). Because the defendant in White was involved in a drug conspiracy with her husband, the United States District Court for the Northem District Iowa, Westem Division, found that any alleged confidential communications did not apply

of

if

they were related to ongoing criminal activity. ld, at28. The Defendant's wife will be permitted to testifu against him, and the defense's Motion is essentially denied. More specifically, under the precedent cited by this Court, Lowery may

testiff to anything she saw, heard, or observed that was not

a

confidential communication. If her

testimony does involve a confidential communication made during the joint criminal activity the pair, that testimony

will

be admitted under

of

the'Joint criminal activity" exception to the

joint marital privilege. If her testimony involves a confidential communication made prior to the

27

criminal activity of the pair, that communication will not be allowed unless the State can show it was made in the presence of or disclosed to a third party.t2

The Defense indicates in their post-hearing argument brief that "the State introduced a

list of topics co-Defendant plans to testiff to concerning events prior to the alleged abduction of Carter." The Court is aware that the State is in possession of a list of this type, but it does not seem to appear in the evidence submitted thus far to the Court.

If the State provides this list to

the Court, it will review the substance of the list and make determinations regarding what and

will not be allowed. The

will

State has argued in their brief about classes of statements like this

statements made to law enforcement, the media, and letters to the co-Defendant

-

- that they allege

waived the privilege and statements made to the co-Defendant that they consider 404(b) evidence of motive and intent. To the extent that the Court's ruling above has not already disposed of these, the Court

will rule on them prior to trial

once

it has been provided with the

aforementioned list. The Court turns to two final matters

- the Defendant

has asserted in his post-omnibus

argument brief that his arrest by the LRPD was not supported by probable cause and that "the

Court should suppress all evidence found in the silver iPhone because the search warrant was a general warrant." The defense has briefed this argument, though

it filed no motions regarding

either issue prior to omnibus.l3 The State has not had the opportunity to respond to these

12

The State has submitted three compact discs containing interviews with the Defendant where he is alleged to have revoked the confidentiality of statements he made to Lowery. The Court has reviewed all of this material, and his only mention of Lowery involves extramarital affairs he participated in. Nothing in these interviews suffices to waive any confidential communications of which the Court is aware. 13 The Court is not aware of any assertion prior to this brief that the LRPD had no probable cause to arrest the Defendant. The defense alleged in their pre-trial Motions that the search warrants for the home and the vehicle were overly broad, and the Court has granted these Motions. Regarding the assertion that the warrant for the silver iPhone was also a general warrant, the Court does not 28

allegations, and the Court will not rule on them until they have been given the opportunity to do so.

IT IS SO ORDERED.

HERBERT T. WRIGHT,

_ CIRCUIT ruDGE

/t - 1-tf DATE

distinct issue presented in the pre-trial Motions. The supposedly offensive warrant language for the iPhone complained of by the defense also does not appear to be present in the exhiUiti submitted thus far to the Court. If the defense is arguing this, the State should be given the opportunity to respond. see this

29