Lewis Order

IN

THE CIRCUIT

COURT OF

PULASKI COUNTY, ARKANSAS

FOURTH

DIVISION

STATE OF

ARKANSAS

VS. ARRON LEWIS

PLAINTIFF

cR

2014-3928

DEFENDANT

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

arguments submitted to this Court by

brief,

and

all

other matters considered, the Court

DOTH

FIND:

The Defendant is charged

with

capital murder, kidnapping, and possession of firearms by

certain persons. The defense has

filed multiple

motions and petitions. Some of these have already

been disposed of

by

an Order entered by this Court on october

6,2015.

The

following

motions

were sgmmarily granted, withdrawn by the Defendant, or deferred by the Court:

The State has indicated that they do not intend to introduce physical evidence from a

Fuji

camera. This motion is hereby granted.

ELECTRONICALLY FILED

Pulaski County Circuit Court Larry Crane, Circuit/County Clerk

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

Motion

to

Suppress Phvsical Evidence

from

Faultv

Warrant for

Black

IBM

LaDtoI)

The State has indicated that they do not intend to introduce physical evidence from the black

IBM

laptop. This motion is hereby granted'

The parties agreed at omnibus that this

Motion

is currently premature. The Court hereby

defers

ruling

on this

Motion,

as

it

is not yet ripe

for

a

ruling'

The State has indicated that they

will

amend the

criminal

information

filed

in the case to add the necessary language: "under circumstances manifesting extreme indifference to the value

of human

life."

The

Motion

is hereby granted'

Motion in Limine

to

Exclude Testimonv about cement Dust Pursuant

to

D,Iu',e"

The State has indicated that they do not intend to introduce expert testimony about cement dust. This

Motion

is therefore granted'

The State has indicated that they do not intend to introduce expert testimony about cell 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

at this time and

will

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

IT

companies. Investigator Jeff

Allison

of the Pulaski County

Sheriff

s Department

_-

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 access to those records, they noticed that the

victim

had recently been in frequent contact

-

both phone calls and

text messages

_-

with

a phone number

with

a New

York

area code. Having access to the

victim's

Apple iCloud account, they noticed that this phone number was one of the few in her call history not identified

with

a known associate. The investigators discovered that this same phone number

was written on an envelope in the

victim's

car.

one

of the investigators called the number and

discovered

it

was a'ospoof number" associated

with

a Google app called TextMe. They then,

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 manner should be suppressed as an oveffeach of the prosecutor's subpoena power. The Defense is right that the prosecutor has no power to issue subpoenas in a

criminal

investigation. The

Court, however, need not decide whether this alleged overreach was

illegal.

Because even

assuming arguendothat the prosecutors improperly allowed the use of

their

subpoena to aid the

police investigation, the Defendant has no standing to challenge these subpoenas, and

suppression would not be the proper remedy. The Defense and State both base their arguments on State v. Hamzy, 2gg

Ark.

561 (1986), a case originating out of this Court, in which telephone records obtained by prosecutorial subpoenas such as the ones before the Court now were

challenged.

The Defense correctly notes that the Hamzy Court found that prosecutors improperly abused their subpoena power when they commanded that telephone records be produced for the police. They omit, however, the actual holding of the case. Hamzy held that, prosecutorial misconduct aside, a defendant had no legitimate expectation of privacy in his telephone records. There was, therefore, no Fourth Amendment

violation,

and the defendant had no standing to

challenge the introduction of the records. Id, at

565.

Finding that

"[t]he

proponent of a motion to

suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure[,]" the Hamzy

court

reversed and remanded this

court's

decision

with

instructions to deny the motion to suppress' Id, at 565-566'

The Defendant cites additionally to Cook v. State _, 27

4

Ark- 244 (1981) and Foster

v'

State, 285

fuk.

363 (19S5).

In

Cook, the prosecutor convened a pretrial conference, having

subpoenaed witnesses, and questioned many witnesses in the presence

of

each other and

without

cross-examination could "lead a recalcitrant witness to a desired answer

in

front of the others"

and deny the accused a

fair trial

when they "parroted" the previous answer again during the trial.

Cook,

suprq

at248-249.

In Foster, the prosecutor used their subpoena power to procure a witness's presence

for

police questioning,

arriving

at a witness's home late at night and

telling

the witness that the

prosecutor wanted to see her. The police proceeded to question her, and the prosecutor did not

participate meaningfully in that questioning. Finding that the prosecutor's subpoena was merely a,.guise to let the offrcers detain her and interrogate her," the Arkansas Supreme Court held that 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 testimony and statements in both of those cases were influenced by the prosecutorial overreach, to the extent that admitting them would have violated the respective defendants' right to a

fair

trial.

The

reliability

of the information obtained by the subpoenas before us is not called into

question by the actions of the prosecutor. Furthermore,

like

in Hamzy, the Defendant has made

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

Motion is therefore denied.

At

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

Sheriff

s Department

Lieutenant

Mark

Swaggerty seized a cell phone from the Defendant,

finding

it

to be registered to

a phone number they knew was associated

with

the disappearance of the

victim.

(see analysis

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

Ark.

R. Crim. P.15.2,1ike the items currently being held and

discussed above. The State has indicated that they intend to use the cell phone as evidence' As discussed in the Court's decision regarding the Defendant's

Motion

to Suppress Physical

Evidence from Vehicle Accident (below), the cell phone was

lawfully

seized pursuant to

Ark'

R'

Crim.

pro

10.2. The Defendant's

Motion

to Return the Cell Phone is, therefore, denied.

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

disappearance of the

victim,

they had received information that a slender white male

driving

a

black passenger vehicle had been spotted at the address where the

victim's

car was found' As discussed above, once the investigators had tied the TextMe number to the account of the co-Defendant Crystal Lowery, they began surveilling her home

at

165 Randall

Dr'

in Jacksonville' In the course of that investigation, they observed a slender white male

-

later determined to be the Defendant

_-

exit the residence and leave

in

a black passenger vehicle' Again, soon after, the

investigators discovered that the Defendant was involved

in

an accident and were able to

determine that the Defendant was in possession of the cell phone that had been used to contact the

victim

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

left

without notice to the doctors or medical staff during tests.

pulaski County Investigato

r

Zachary Warren testified that he prepared an

affidavit

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

District

Court Judge Wayne Gruber on Septemb er 28,2074, and

it

was executed by the

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

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

simply the

victim,s

clothing, Warren testified that the warrant would have authorized them to

seize any clothing. When asked about shell casings, Warren admitted that they had no reason to

know whether shell casings would be present at the home. He testified that,

"we didn't

know at

the time. We

didn't

know how the crime was committed, what acts, whether

it

was by firearm or

any other weapon." He

similarly

admitted that they had no reason to know whether there would

any objects of that type. When asked about

DNA,

biological evidence, human remains, clothing,

or personal property, Warren responded that the investigators had no idea at the time

of

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

victim

had ever been taken to the residence. He testified that they also had no reason to know

whether there would be any electronic evidence located in the home, aside from a phone (that had already been seized) that could conceivably allow access to the aforementioned TextMe app. 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

relating to the disappearance of the

victim.

During cross-examination, the defense asked the

investigator,

"Is

there anything in that residence that you

couldn't

have taken?" The investigator

answered that they would have been permitted to seize any item

"[a]s

it

pertains to the disappearance of Beverly Carter." He admitted that the investigators seized

jewelry without

knowledge that

it

was the

victim's,

that they took a credit card reading device that they were

unsure had any connection to the

victim's

disappearance, and that they seized

multiple

firearms

that they had no indication were connected to the investigation.

One of the basic concepts of the Fourth Amendment is that searches and seizures must be ..reasonable.,, The Amendment

itself

states that

"no

Warrants shall issue, but upon probable cause, supported

by

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

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 considered evidence or lead to the discovery

ofadditional

evidence, based on the investigators'

theory that the

victim

had been kidnapped and/or murdered'

Reviewing Investigator Warren's testimony at the omnibus hearing,

it

is clear that the

ultimate discretion of what items to search

for

and seize was directly left to the investigators. His

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

investigators seized

multiple

items that, though they may be either contraband or evidence of the

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 the scope of the search warrant." The Court would agree that the search

itself

did not exceed the

warrant,s scope, but

it

is left to the Court's imagination what actually would exceed the scope

of

the warrant executed in this case, considering the amount of discretion delegated to (and

exercised by) the investigators.

Nor

is the Court convinced by the State's argument that the

Motion to

Suppress should be

denied based on the Leon good-faith exception to the exclusionary rule. In that case, the United States Supreme Court held that evidence could be admitted notwithstanding the exclusionary rule where

it

is shown that officers executing a warrant acted in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. United States v. Leon, 468 U.S. 897 (1984). The State has asserted in their

brief

that the investigators were acting in reasonable reliance on the warrant, but the testimony of the investigators in question tells a different story. Investigator Warren created the

affidavit

and the

warrant itself, which mirrors the language in their affidavit

_-

typos and

all.

To be sure, the investigators were operating under the demands of their

job

and the public pressure

of

a

high-I

_Actually

_{eleven, owing to the typos in the}

_affidavit

and warrant

,

_eor.*u*ple,

_{the inveJtigato.,}

_dir.orc.ed

and conhscated

multiple

firearms in the home, as

well

as a ciedit card readei, something the investigators speculated was an instrument of an

identity theft scheme on the part of

thi

Defendant. The State has not suggested that these items are part of its case against the Defendant.

profile investigation, but to say that they acted

with

such good faith as to come

within

the

protection of Leon strains credulity.

The Court would emphasize that

it

does not come to this decision

lightly.

We are aware that this search resulted in the discovery of evidence directly

linking

the Defendant to the alleged

kidnapping and murder of Beverly Carter. The exclusionary rule, however, was created as a deterrent to law enforcement. "The rule is calculated to prevent, not to repair. Its purpose is to deter

_-

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

_-

by removing the incentive to disregard

it."

Elkins v. U.S. 364

U'S'

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

disregarded here, and the Court hereby grants the Defendant's

Motion to

Suppress all evidence

obtained as a result of the

illegal

search

of

165 Randall'

and

During the aforementioned surveillance at 165 Randall, investigators observed the Defendant exiting the home and leaving in a Black 2012 Ford Fusion' Knowing that the Defendant and vehicle matched the description of the

individual

seen at the location where the

victim's

car was discovered, investigators radioed Lieutenant

Mark

Swaggerty to

trail

the

Defendant. He did so

in

an unmarked car,

following

the Defendant in the Jacksonville area' He

lost sight of the vehicle at a corner, and when he turned, he discovered that the Defendant's

,

_tt.r*-"

_*ota*

_{largely involve} the same factual narrative. For the purpose of clarity, the Court

will

analyze them in concert.

vehicle had been involved in an accident and was

lying

on its side

in

a ditch,

with

the Defendant

climbing out of the

driver's

side door. He approached the scene, observed that the Defendant was

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

emergency personnel was examining

him,

Swaggerty asked the Defendant for his phone number.

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

have the phone number. The Defendant then repeated the exact phone number in question, and Swaggerty confiscated the phone from him. He was not, at this time, mirandized or under arrest according to Swaggerty. The Defendant was then taken to the hospital. He was not in custody. 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

on Septemb

er

28,ZOl4.At

this point, the vehicle had been towed to the Pulaski County

Sheriff

s

Office. Ables testified that a search warrant for the vehicle was found to be necessary "given the

information based upon the motor vehicle accident, search warrant

[for

the home] and the

information obtained[.]" Ables swore out the affrdavit and presented the search warrant

for

signature to Judge Gruber, as Investigator Warren had done previously. The warrant specified that there was reasonable cause to believe that the vehicle contained the same categorical

list

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

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

of

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

had been involved

in

an accident. Swaggerty never indicated to the Defendant that he was not

free to leave or demanded that he answer any questions. He simply asked whether the Defendant needed medical assistance and asked him for his phone number. Considering that

law

enforcement now had a wrecked, uptumed vehicle to contend

with,

this was a reasonable request

if

only to maintain a means

of

contact

with

the Defendant. He was not accompanied by

law

enforcement to the hosPital.

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

s _{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.

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

6 _{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.

phone registered to Crystal Lowery, the question is less about probable cause and more about the breadth of the warrant.

Like

the warrant for the home, this was a general warrant in violation

of

the Fourth Amendment, and the fact that

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 inventory search was done on the Defendant's vehicle between the time when

it

was towed away by the investigators and the point where the

invalid

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

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

After

the Defendant had left the hospital without

notifying

staff, Investigator Drew Evans

of the pulaski County

Sheriff

s Offrce created an affrdavit and warrant

for

his arrest and presented it to Judge Gruber. Gruber signed the warrant, and investigators began searching

for

the Defendant.

officers

from the

Little

Rock Police Department received a report of a suspicious person in West

Little

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

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 was also installed, unbeknownst to the Defendant. The investigators interrogated

him

further.

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

"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

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

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

.,yelling,' _that ..[h]e _{wanted to talk to that}

_FBI

_{guy and the}

_sheriff

s guy again." The investigators

entered the interview room, where the Defendant was

still

shouting that he wanted to speak to

the

FBI

agent. The Defendant told the investigators "that he was

willing

to take deputies to some locations,, where the

victim

had been. The investigators placed the Defendant in a vehicle and

traveled to

multiple

locations in Pulaski and Saline Counties,

while

the Defendant related details

of the

victim,s

kidnapping. The

victim

was not found at these locations, and they retumed to the

interview room. Investigator

Allison

advised the Defendant that his rights were

still

valid, and

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 statements or evidence that has been suppressed as

violative

of Miranda may nonetheless be used

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.

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.

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

will

not grant the State a hearing on this matter but

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

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

crime against the person or property of the other spouse, a

child of

either, or a person residing

in

the household of either and

in

doing so inadvertently committed the crime against a person

or

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

constitute what

would

seem to be a "blanket

waiver"

of his spousal privilege.

MacKool

instead is

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

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 privilege against disclosure waives the privilege

if

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

of

Iowa, Westem

Division,

found that any alleged confidential communications did not apply

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

of

the pair, that testimony

will

be admitted under

the'Joint

criminal

activity"

exception to the marital privilege.

If

her testimony involves a confidential communication made prior to the

joint

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

will

and

will

not be allowed. The 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

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,

/t

-

1-tf

DATE

see this 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.

_

_CIRCUIT

_ruDGE