Wofford v. State
Annotate this Case
Stephanie Kay WOFFORD v. STATE of Arkansas
CR 97-38 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered October 2, 1997
1. Criminal procedure -- conditional plea of guilty -- general rule and
exception on appeal -- supreme court declined to consider non-suppression
points. -- As a general rule, one is not allowed to appeal from
a conviction resulting from a plea of guilty or nolo
contendere; Ark. R. Crim. P. 24.3(b) presents an exception to
the rule but only for the purpose of determining on appeal
whether an appellant should be allowed to withdraw her plea if
it is concluded that evidence should have been, but was not,
suppressed; the supreme court, therefore, declined to consider
two points raised by appellant that did not concern
suppression of evidence.
2. Search & seizure -- warrantless entry -- illegal unless State establishes
exception. -- A warrantless entry must be viewed as illegal
unless the State establishes the availability of an exception
to the warrant requirement.
3. Motions -- motion to suppress -- standard of review. -- When the
appellate court reviews a ruling on a motion to suppress, it
makes an independent determination based on the totality of
the circumstances, viewing the evidence in the light most
favorable to the State, and reverses only if the ruling is
clearly against the preponderance of the evidence.
4. Search & seizure -- warrantless entry -- supreme court affirmed trial
court's ruling that officers' initial entry was justified by exigent
circumstances. -- The supreme court, citing Ark. R. Crim. P.
14.3, which establishes the "emergency exception" to the
warrant requirement, affirmed the trial court's ruling that
police officers' initial entry into appellant's home was
justified by exigent circumstances.
5. Search & seizure -- warrantless entry -- officer's entry into bedroom
related to objectives of authorized intrusion. -- Where one police
officer entered appellant's bedroom in search of appellant's
son despite a family friend's statement that he believed the
child was already dead, this aspect of the search was
nonetheless consistent with Ark. R. Crim. P. 14.3(a) because
the friend's assessment of the child's condition could well
have been incorrect; the officer's entry into the bedroom was
clearly related to the objectives of the authorized intrusion
into the residence.
6. Search & seizure -- warrantless entry -- emergency exception -- police may
seize evidence in plain view. -- Under the emergency exception, a
warrantless entry into a home may be upheld if the State shows
that the intruding officer had, in the language of Ark. R.
Crim. P. 14.3(a), "reasonable cause" to believe that someone
inside the home was "in imminent danger of death or serious
bodily harm"; any search that follows the emergency entry may
be upheld under this rule only if the search was "reasonably
necessary for the prevention of such death, bodily harm, or
destruction" and is "strictly circumscribed by the exigencies"
that necessitated the emergency entry in the first place; the
police may seize evidence that they observe in plain view
while conducting legitimate emergency activities.
7. Search & seizure -- warrantless entry -- did not exceed scope of emergency
that justified it. -- The record did not indicate that the police
officers' initial entry exceeded the scope of the emergency
that justified it; moreover, it was clear that they did not
seize any evidence in the home, although they could have done
so had they observed the evidence in plain view during the
course of their legitimate emergency activities.
8. Search & seizure -- warrantless entry -- exigent-circumstances exception
does not require probable cause. -- While probable cause is the
basis upon which a warrant to search may be granted, the
exigent-circumstances exception contained in Ark. R. Crim. P.
14.3(a) does not require an officer to have probable cause to
believe a crime has been, or is being, committed on the
premises for a warrantless entry.
9. Search & seizure -- plain-view exception -- prerequisite for application. -
- One of the prerequisites for applying the plain-view
exception is that the initial intrusion that brings the police
within plain view of evidence be supported, if not by a
warrant, then by one of the recognized exceptions to the
warrant requirement.
10. Search & seizure -- plain-view exception -- when subsequent entry and
plain-view seizure lawful. -- Although the supreme court could not
say that the subsequent warrantless intrusion of two other
police officers into appellant's home was lawful because they
had consent or because exigent circumstances were prevailing
at the time of their initial entry, it concluded that the
officers' entry was lawful and that their seizure of evidence
may have been valid under the plain-view exception; where the
police enter a private residence in accordance with the
emergency exception but are unable to preserve the evidence
that they observe in plain view while rendering assistance, a
second entry by other officers without a warrant is lawful,
even though the emergency has passed, if the search that
follows is restricted in nature and scope to securing the
evidence observed in plain view by the officers who entered
pursuant to the emergency exception.
11. Search & seizure -- plain-view exception -- matter remanded for
determination whether evidence seized in subsequent entry was observed in
initial entry. -- Where the record did not establish that the
evidence seized by the second pair of police officers was in
fact observed in plain view by the first pair of officers, the
supreme court remanded for the trial court to make that
determination.
12. Search & seizure -- plain-view exception -- inadvertency requirement
applies to initial officers' observations and not to those of officers who
follow. -- Another of the prerequisites for applying the plain-
view exception is that the discovery of the evidence must be
inadvertent; here, although the record supported appellant's
contention that the second pair of police officers' discovery
of the evidence in question was anything but inadvertent, the
supreme court declared that it was clear that the inadvertency
requirement applies to the initial officers' observations and
not to those of officers who follow; if the items seized were
inadvertently viewed by the first pair of officers, then it
did not matter that the later officers entered the house with
the purpose of seizing them.
13. Search & seizure -- plain-view exception -- inadvertence not necessary
condition for application. -- "Inadvertence" is not a necessary
condition for application of the plain-view exception in any
type of case brought under the Fourth Amendment.
14. Search & seizure -- plain-view exception -- appellant's inadvertence
argument rejected. -- Insofar as appellant's inadvertence argument
concerned only the Arkansas Constitution, the supreme court
rejected it on the basis that it is unnecessary for an officer
who enters a residence for the purpose of continuing another
officer's search and collecting evidence that the other
officer observed in plain view to discover the evidence
inadvertently.
15. Motions -- motion to suppress -- trial court's ruling on appellant's
statements not clearly against preponderance of evidence. -- The supreme
court affirmed the trial court's ruling on the admissibility
of appellant's statements because it could not say that it was
clearly against the preponderance of the evidence.
16. Motions -- motion to suppress -- Fruit of Poisonous Tree argument rejected.
-- To the extent that appellant's incriminating statements
were the result of a warrantless entry justified under the
emergency exception contained in Ark. R. Crim. P. 14.3(a),
they are not inadmissible under a Fruit of the Poisonous Tree
argument because the officers' entry into her home was not
unconstitutional.
17. Criminal procedure -- Miranda warnings required only in custodial
interrogation. -- Miranda warnings are required only in the
context of custodial interrogation.
18. Criminal procedure -- when person is "in custody" for Miranda purposes --
relevant inquiry. -- A person is "in custody" for purposes of the
Miranda case when he or she is deprived of his freedom of
action by formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest; in resolving the
question of whether a suspect was in custody at a particular
time, the only relevant inquiry is how a reasonable man in the
suspect's shoes would have understood his situation.
19. Criminal procedure -- determination of custody -- objective circumstances.
-- The initial determination of custody depends on the
objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers
or the person being interrogated.
20. Criminal procedure -- reasonable person in appellant's situation could not
have believed she was restrained by police before she made initial
statement. -- A reasonable person in appellant's situation could
not have believed that she was restrained by the police prior
to the time she made her initial incriminating statement where
she had been taken to the hospital on account of her injuries
and was not escorted there by the police and where, when the
police entered her room, they neither arrested her nor
indicated in any manner that she was a suspect.
21. Criminal procedure -- custody -- confinement to hospital bed alone does not
constitute. -- Confinement to a hospital bed is insufficient
alone to constitute custody; there is no per se `hospital
rule' in a custody inquiry because each case must be decided
on its own facts.
22. Criminal procedure -- trial court did not err in concluding appellant was
not in custody at time of first statement. -- In the absence of other
indicia of custody, the supreme court could not say that
appellant's health-related confinement alone produced a
custodial situation because her confinement was not the result
of police compulsion; given the totality of the circumstances,
the supreme court could not say that the trial court erred in
concluding that appellant was not in custody at the time she
made her first incriminating statement.
23. Criminal procedure -- interrogating officer's failure to advise appellant
that she could cut off questioning at any moment did not violate Miranda
holding. -- Although the supreme court noted its view that it is
the better practice for the police to advise an arrested
person that he or she may cut off questioning at any moment,
it was not prepared to say that an interrogating officer's
failure to do so in appellant's case violated the Supreme
Court's Miranda holding.
24. Criminal procedure -- voluntariness and knowing and intelligent waiver are
separate inquiries. -- The question of voluntariness and the
question of a knowing and intelligent waiver are distinct and
separate inquiries.
25. Appeal & error -- appellant failed to obtain ruling on waiver -- not
preserved for appeal. -- Where appellant failed to obtain a ruling
on the discrete issue of the knowing and intelligent waiver of
constitutional rights, it was not preserved for appeal, and
the supreme court did not address it.
26. Criminal procedure -- voluntary statement defined. -- A statement must
be voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or
deception.
27. Criminal procedure -- voluntariness of statement -- factors on review. --
When the voluntariness of a statement is an issue, the
appellate court makes an independent determination based on
the totality of the circumstances surrounding the statement
and reverses the ruling of the trial court only if that ruling
was clearly against the preponderance of the evidence; a
custodial statement is presumed involuntary, and the burden is
on the State to show that the statement was voluntarily given;
in making a determination of whether a statement was
voluntarily made, the appellate court will consider many
factors, among which are the age, education and intelligence
of the accused; the length of questioning; the advice or lack
of advice on constitutional rights; the repeated or prolonged
nature of questioning; and the use of mental or physical
punishment.
28. Criminal procedure -- trial court's ruling that statements were made
voluntarily not erroneous. -- Although appellant may have been in
a weakened physical or mental condition at the time of making
her statements, that fact would not render the statements
involuntary absent a finding of police misconduct; where the
testimony of police officers showed that appellant was alert
in the treatment room and able to converse coherently with
those around her; where the questioning was preceded by
adequate Miranda warnings when necessary and was not unduly
long; and where appellant obtained a high-school education and
was holding down a job, the supreme court could not say, in
those circumstances, that the trial court's ruling that the
statements were voluntarily made was clearly against the
preponderance of the evidence.
29. Appeal & error -- Rule 4-3(h) -- additional review not required in appeals
from pleas of guilty or nolo contendere. -- In appeals from pleas of
guilty or nolo contendere, the supreme court is not required
to undertake the additional review prescribed by Ark. Sup. Ct.
R. 4-3(h).
30. Appeal & error -- case remanded for determination whether first pair of
officers observed in plain view items later seized by other officers. --
The supreme court remanded appellant's case to the trial court
to conduct an additional hearing to determine whether the
first pair of officers to enter appellant's home observed in
plain view the items later seized by a second pair of
officers.
Appeal from Sebastian Circuit Court; Don Langston, Judge;
remanded.
Walker, Shock & Harp, PLLC, by: J. Randolph Shock, for
appellant.
Winston Bryant, Att'y Gen., by: Vada Berger, Asst. Att'y
Gen., for appellee.
David Newbern, Justice.
Stephanie Kay Wofford pleaded nolo contendere to first-degree
murder in connection with the death of her five-year-old son Mark.
She was convicted pursuant to her plea and sentenced to life
imprisonment. In accordance with Ark. R. Crim. P. 24.3(b), Ms.
Wofford's plea was conditional; thus she reserved the right to
appeal from the Trial Court's denial of her motion to suppress
evidence. The evidence in question included statements that were
either given while she was not in custody or were preceded by an
adequate Miranda warning. We hold there was no requirement that
the statements be suppressed.
Also in question, however, are items of evidence seized by
police officers who entered Ms. Wofford's home without a warrant
sometime after other officers had entered without a warrant but
pursuant to circumstances the Trial Court deemed exigent. The
question to be answered is whether the officers entering later
could properly seize items that could have been seized by the first
entering officers because they were inadvertently seen by them in
"plain view" while they were there for emergency purposes. As
there was no testimony on the point at the suppression hearing, we
cannot determine whether the items seized were in plain view of the
officers who first entered. We, therefore, must remand the case
for the limited purpose of determining the answer to that question.
If it is properly determined by the Trial Court that the items
seized were seen in plain view by the officers who initially
entered Ms. Wofford's home, the conviction will be affirmed.
Before considering Ms. Wofford's suppression arguments, we
note that she has raised two points of appeal not permitted by Rule
24.3(b) and the conditional plea arrangement. Those arguments
concern the Trial Court's upward departure from the sentencing
guideline contained in Ark. Code Ann. 16-90-803 and 16-90-804
(Supp. 1995) and an alleged violation of Ark. Sup. Ct. Admin. Order
#6 having to do with cameras in the courtroom. As a general rule,
one is not allowed to appeal from a conviction resulting from a
plea of guilty or nolo contendere. Ark. R. App. P.--Crim. 1(a).
See Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997). Rule
24.3(b) presents an exception to the rule but only for the purpose
of determining on appeal whether an appellant should be allowed to
withdraw her plea if it is concluded that evidence should have
been, but was not, suppressed. We, therefore, decline to consider
the two points that do not concern suppression of evidence.
1. The search
From the home where she and her son lived, Ms. Wofford
telephoned her parents' home, which was apparently nearby in Ft.
Smith. Ms. Wofford's sister, Amanda Hutchins, learned of the call
and believed "something was wrong." Ms. Hutchins went to Ms.
Wofford's home where she found Ms. Wofford sitting on a couch with
blood on her wrists and clothing. Ms. Wofford's father and
brother, along with family friend Henry McMurtery, then arrived.
Ms. Hutchins called 911 and reported that Ms. Wofford had tried to
kill herself, that there was blood "all over," and that Ms. Wofford
had said her son would not wake up.
Ft. Smith police officers William Ohm and David C. Boyd, Jr.,
were on patrol on Ms. Wofford's block. They heard a dispatch and
arrived at Ms. Wofford's house almost immediately. They understood
that a child was "down and bleeding," and they thought it might
have been as the result of a traffic accident. Ms. Wofford's
father, sister, and brother were in the yard along with Mr.
McMurtery who waived to the police officers to follow him into the
house, saying, "They're in here." Mr. McMurtery had not only seen
Ms. Wofford as previously described but had been to the rear of the
house and had found Mark on a bed in Ms. Wofford's bedroom with his
wrists cut and his eyes open and dilated.
The officers entered the house without a warrant shortly after
3 p.m. and spent ten or fifteen seconds checking Ms. Wofford's
vital signs. Officer Boyd, Jr., remained with Ms. Wofford while
Officer Ohm followed Mr. McMurtery to the bedroom to examine Mark.
By 3:29 p.m., Officer Ohm had determined that Mark was deceased.
He returned to the living room and told Officer Boyd, Jr., to
secure the area. In the meantime, Officer Boyd, Jr., had attempted
to learn what had happened from Ms. Wofford. She appeared to be
dazed and said only, "I can't die. I cannot die," and she asked,
"Why won't he wake up?" When asked about her cut wrists she
replied that she had cut them with a knife that was in "the back
room."
At around 3:40 p.m., Officer Ohm called for a supervising
officer, an additional police unit, and an emergency medical
services ("EMS") unit for Ms. Wofford. The EMS unit arrived around
3:50 p.m. As Officers Ohm and Boyd, Jr., were securing the
perimeter of the home, they noticed a door leading from the outside
into Ms. Wofford's bedroom. The door appeared to have been kicked
in or struck with a sharp object. There were drops of blood and
shattered glass. After securing the area, Officer Boyd, Jr., began
keeping a detailed log of entries and exits.
At 4:00 p.m. Ms. Wofford left for a hospital emergency room in
an ambulance. Officer Chris Boyd, Sr., had arrived at the scene at
4:05 p.m. At 4:41 p.m. Officer Boyd, Sr., left for the hospital
where he was later to question Ms. Wofford. On her way to the
hospital Ms. Wofford told an emergency medical technician, "He
wouldn't breathe, so, I cut his wrists to match mine."
At 4:05 and 4:15 p.m., respectively, Officer Risley and
Sergeant Lonetree arrived. Officer Risley entered the home at 4:05
p.m. with other officers but withdrew because of a strong odor of
gas or petroleum. Sergeant Lonetree had brought a video camera and
equipment to be used to gather evidence. He was, however,
initially unable to enter the house on account of safety concerns
relating to the gas or oil fumes. After the crime scene had been
secured, firemen arrived at 4:32 p.m. and left at 5:20 p.m.
Personnel from the gas company arrived at 5:07 p.m., turned off the
gas, and left at 5:35 p.m. The coroner left with Mark Wofford's
body at 5:38 p.m.
After receiving assurance that it was safe to enter the
premises, Sergeant Lonetree and Officer Risley did so without a
warrant. As they walked through the rooms of the house, they took
photographs and made a videotape. At 6:10 p.m., they seized the
first piece of evidence. By 8:55 p.m., they had seized 29
additional items. Sergeant Lonetree testified that the items
seized were in plain view.
In denying Ms. Wofford's motion to suppress the evidence
seized from her home, the Trial Court found that the officers'
initial, warrantless entry was justified by "exigent
circumstances." The Trial Court also found the officers had
obtained "some form of consent" to enter the home. The Trial Court
further indicated that the seizure of evidence was permissible as
it was in plain view. Ms. Wofford contends that none of the
established exceptions to the Fourth Amendment's warrant
requirement justified the entry into, and search of, her home.
a. Officers Ohm and Boyd, Jr.
Ms. Wofford correctly states in her brief that, as Officers
Ohm and Boyd, Jr., entered her residence without a warrant, their
entry must be viewed as illegal unless the State established the
availability of an exception to the warrant requirement. Williams
v. State, 327 Ark. 213, 939 S.W.2d 264 (1997); Willett v. State,
298 Ark. 588, 769 S.W.2d 744 (1989). Ms. Wofford maintains the
State failed to satisfy its burden and that the Trial court erred
by finding that the officers had consent to enter her home and that
their entry was justified by exigent circumstances. In her view,
therefore, the evidence obtained by the police as a result of the
officers' initial entry into her home should be suppressed as the
fruits of an entry made in violation of the Fourth Amendment. See
Wong Sun v. United States, 371 U.S. 471 (1963).
When we review a ruling on a motion to suppress, we make an
independent determination based on the totality of the
circumstances, viewing the evidence in the light most favorable to
the State. We reverse only if the ruling is clearly against the
preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).
Applying this standard, we affirm the Trial Court's ruling
that the officers' initial entry was justified by exigent
circumstances. Given the testimony adduced at the suppression
hearing, that ruling was correct under Ark. R. Crim. P. 14.3, which
establishes the "emergency exception" to the warrant requirement
and provides in part as follows:
An officer who has reasonable cause to believe that
premises or a vehicle contain:
(a) individuals in imminent danger of death or
serious bodily harm ...
***
may, without a search warrant, enter and search such
premises and vehicles, and the persons therein, to the
extent reasonably necessary for the prevention of such
death, bodily harm, or destruction.
The United States Supreme Court has repeatedly recognized the
emergency exception in its Fourth Amendment jurisprudence. See,
e.g., Thompson v. Louisiana, 469 U.S. 17 (1984); Mincey v. Arizona,
437 U.S. 385 (1978). In the Mincey case, the Court said that it
does
not question the right of the police to respond to
emergency situations. Numerous state and federal cases
have recognized that the Fourth Amendment does not bar
police officers from making warrantless entries and
searches when they reasonably believe that a person
within is in need of immediate aid. Similarly, when the
police come upon the scene of a homicide they may make a
prompt warrantless search of the area to see if there are
other victims or if a killer is still on the premises.
Cf. Michigan v. Tyler, [436 U.S. 499, 509-10 (1978)].
"The need to protect or preserve life or avoid serious
injury is justification for what would be otherwise
illegal absent an exigency or emergency." Wayne v.
United States, 115 U.S. App. D.C. 234, 241, 318 F.2d 205,
212 (opinion of Burger, J.). And the police may seize
any evidence that is in plain view during the course of
their legitimate emergency activities. Michigan v.
Tyler, supra, at 509-510; Coolidge v. New Hampshire, [403 U.S. 443, 465-66 (1971)].
But a warrantless search must be "strictly
circumscribed by the exigencies which justify its
initiation," Terry v. Ohio, [392 U.S. 1, 25-26 (1968)] .
. . .
Mincey v. Arizona, 437 U.S. at 392-93 (footnotes omitted). See
generally 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment 6.6(a), at pp. 390-403 (3d ed. 1996).
It is true that Officer Ohm entered Ms. Wofford's bedroom in
search of Mark Wofford despite Mr. McMurtery's statement that he
believed the child was already dead. This aspect of the search was
nonetheless consistent with Rule 14.3(a) because Mr. McMurtery's
assessment of the child's condition could well have been incorrect.
"Frequently, the report of a death proves inaccurate and a spark of
life remains, sufficient to respond to emergency police aid."
Patrick v. State, 227 A.2d 486, 489 (Del. 1967). In short, the
officer's entry into the bedroom was clearly related to the
objectives of the authorized intrusion into the residence. See
generally LaFave, supra, at p. 393-94 and n.19-23.
As the Supreme Court of Wisconsin has noted, the Fourth
Amendment's "reasonableness" requirement is satisfied in the case
of an emergency entry into a home "by the compelling need to render
immediate assistance to the victim of a crime, or insure the safety
of the occupants of a house when the police reasonably believe them
to be in distress and in need of protection." State v. Kraimer,
298 N.W.2d 568, 572 (Wis. 1980). "[T]he purpose of assisting the
victim if still alive supplie[s] a compelling reason for immediate
entry, quite apart from the purpose of prosecuting for crime."
State v. Hoyt, 128 N.W.2d 645, 651 (Wis. 1964).
Thus, under the emergency exception, a warrantless entry into
a home may be upheld if the State shows that the intruding officer
had "reasonable cause" to believe that someone inside the home was
"in imminent danger of death or serious bodily harm." Ark. R.
Crim. P. 14.3(a). Any search that follows the emergency entry may
be upheld under this rule only if the search was "reasonably
necessary for the prevention of such death, bodily harm, or
destruction," id., and is "strictly circumscribed by the
exigencies" that necessitated the emergency entry in the first
place. Mincey v. Arizona, 437 U.S. at 393, quoting Terry v. Ohio,
392 U.S. at 25-26. See People v. Mitchell, 357 N.E.2d 607, 610
(N.Y. 1976)("There must be a direct relationship between the area
to be searched and the emergency."). However, as the Supreme Court
noted in the Mincey case, the police may seize evidence that they
observe in plain view while conducting "legitimate emergency
activities." Mincey v. Arizona, 437 U.S. at 393. We applied the
exception in Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980).
The record does not indicate that the entry of Officers Ohm
and Boyd, Jr., exceeded the scope of the emergency that justified
it. Moreover, it is clear that they did not seize any evidence in
the home, although they could have done so had they observed the
evidence in plain view "during the course of their legitimate
emergency activities." Mincey v. Arizona, 437 U.S. at 392-93.
We note Ms. Wofford's suggestion that Rule 14.3(a) cannot
apply to the case at bar because Officer Ohm and Boyd, Jr., at the
time of entering her home, lacked probable cause to believe that a
crime had been, or was being, committed. In support of her
suggestion, she cites Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988). In the Mitchell case, we held the officer's
warrantless entry into the appellant's home was illegal because the
officer lacked probable cause to believe a crime had been, or was
being, committed and because there were no exigent circumstances.
Thus, the entry was not covered by the exception to the warrant
requirement discussed in Payton v. New York, 445 U.S. 573 (1980).
We also said that the officer's entry was not justified by the need
to render emergency aid. We did not suggest, however, that the
exigent-circumstances exception contained in Rule 14.3(a) requires
an officer to have probable cause to believe a crime has been, or
is being, committed on the premises. Probable cause is, of course,
the basis upon which a warrant to search may be granted. See Ark.
R. Crim. P. 13.1(d); Century Theaters, Inc., v. State, 274 Ark.
484, 625 S.W.2d 511 (1981).
Finally, in light of our agreement with the conclusion that
Officers Ohm and Boyd, Jr., were justified by exigent circumstances
in entering Ms. Wofford's home, we do not resolve the question of
whether the officers had consent to enter the residence. The
officers conceded at the hearing that they lacked consent to enter
the residence.
b. Sergeant Lonetree and Officer Risley
Our holding that Officers Ohm and Boyd, Jr., legally entered
Ms. Wofford's home does not, by itself, answer the question
whether the subsequent warrantless intrusion made by Sergeant
Lonetree and Officer Risley comports with the Fourth Amendment's
requirement that searches and seizures be reasonable. As with any
warrantless search and seizure, the one with which we are concerned
here must be viewed as illegal unless the State has established the
availability of a warrant-requirement exception. Williams v.
State, supra; Willett v. State, supra.
As mentioned, the Trial Court ruled that the evidence seized
by Sergeant Lonetree and Officer Risley was admissible because it
was in plain view when the officers observed it. Ms. Wofford
maintains that the Trial Court erred in relying on the plain-view
exception to the warrant requirement because (1) Sergeant Lonetree
and Officer Risley were not lawfully present in the house when they
observed the evidence; and (2) their discovery of the evidence was
not inadvertent. Viewing the evidence favorably to the State, we
cannot say that the Trial Court's ruling on the admissibility of
the evidence seized by Sergeant Lonetree and Officer Risley is
clearly against the preponderance of the evidence, Norman v. State,
supra, assuming the items seized had been observed in plain view by
Officers Ohm and Boyd, Jr.
Ms. Wofford first contends that the plain-view exception does
not apply here because Sergeant Lonetree and Officer Risley were
not lawfully present in her home when they observed in plain view
the thirty items of evidence that they ultimately seized.
According to the decisions of this Court and the Supreme Court of
the United States, one of the prerequisites for applying the plain-
view exception is that "the initial intrusion that brings the
police within plain view of such [evidence] is supported," if not
by a warrant, then "by one of the recognized exceptions to the
warrant requirement." Arizona v. Hicks, 480 U.S. 321, 326 (1987)
(citations omitted). See Williams v. State, 327 Ark. at 218, 939 S.W.2d at 267 (stating an element of the plain-view exception is
that "the initial intrusion was lawful"); Johnson v. State, 291
Ark. 260, 263, 724 S.W.2d 160, 162, cert. denied, 484 U.S. 830
(1987).
Thus, in order to uphold the officers' search and seizure of
evidence in Ms. Wofford's home pursuant to the plain-view
exception, we must find that the officers' initial warrantless
intrusion into the residence was lawful. Ms. Wofford contends that
their initial intrusion was not lawful because it was covered by
none of the exceptions to the warrant requirement. Because the
evidence was obtained as the result of an illegal entry, argues Ms.
Wofford, the evidence should be suppressed as the fruits of an
illegal entry and search. See Wong Sun v. United States, supra.
At first glance, Ms. Wofford's argument appears convincing.
There is no question that Sergeant Lonetree and Officer Risley
lacked consent to enter and conduct a search of the premises. It
also is clear that exigent circumstances were no longer extant when
Sergeant Lonetree and Officer Risley entered the home and commenced
their search.
The emergency that validated the entry of Officers Ohm and
Boyd, Jr., at 3:26 p.m. had ceased shortly thereafter when those
officers ascertained the condition of Ms. Wofford and her son and
secured the crime scene. By 4:00 p.m., the police had concluded
that Mark Wofford was dead, the coroner had arrived, and Ms.
Wofford had been taken to the emergency room. The exigent
circumstances that justified the first two officers' entry at 3:26
p.m. simply did not exist when Sergeant Lonetree and Officer Risley
entered Ms. Wofford's residence. Thus, those circumstances alone
could not have validated the subsequent entry made by Sergeant
Lonetree and Officer Risley. See La Fournier v. State, 280 N.W.2d 746, 749 (Wis. 1979)(stating the emergency exception "may not be
relied upon where the entry is secured after the emergency is
terminated")(emphasis added).
Moreover, as the crime scene had been secured, there was no
emergency concerning "the risk of removal or destruction of
evidence," Humphrey v. State, 327 Ark. 753, 766, 940 S.W.2d 860,
867 (1997), that might have justified Sergeant Lonetree's and
Officer Risley's entry. Nor were the officers permitted to enter
the home simply because they may have suspected that a murder had
occurred there. The Supreme Court of the United States has
consistently held that a warrantless search of a home cannot be
validated under the emergency exception "simply because a homicide
recently occurred there." Mincey v. Arizona, 437 U.S. at 395. The
Court in the Mincey case declined "to hold that the seriousness of
the offense under investigation itself creates exigent
circumstances of the kind that under the Fourth Amendment justify
a warrantless search." Id. at 394. See also Thompson v.
Louisiana, 469 U.S. at 21 (stating that, in the Mincey case, the
Court "unanimously rejected the contention that one of the
exceptions to the Warrant Clause is a `murder scene exception'").
We noted the Supreme Court's rejection of the "murder scene
exception" in our opinions in Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), and Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987).
Even if the police collectively had acquired probable cause to
arrest Ms. Wofford, probable cause to arrest Ms. Wofford could not
have supplied a basis for entering her home without a warrant, at
least in the absence of exigent circumstances and Ms. Wofford's
presence in the home. See Payton v. New York, supra. Finally, any
emergency arising from the gas or oil fumes could not have
justified the officers' entry given Sergeant Lonetree's testimony
that he and Officer Risley entered the residence after having been
assured that the "crisis" was over.
Thus, we cannot say that Sergeant Lonetree's and Officer
Risley's initial intrusion into Ms. Wofford's home was lawful
because they had consent or because exigent circumstances were
prevailing at the time of their initial entry. These exceptions to
the warrant requirement simply do not cover their intrusion.
Nonetheless, we conclude that Sergeant Lonetree's and Officer
Risley's entry into Ms. Wofford's home was lawful and that their
seizure of evidence may have been valid under the plain-view
exception. In reaching this conclusion, we rely on the holding in
La Fournier v. State, 280 N.W.2d 746, 751 (Wis. 1979), that, where
the police enter a private residence in accordance with the
emergency exception but are unable to preserve the evidence that
they observe in plain view while rendering assistance, a second
entry by other officers without a warrant is lawful, even though
the emergency has passed, if the search that follows is restricted
in nature and scope to securing the evidence observed in plain view
by the officers who entered pursuant to the emergency exception.
Other courts have found the rationale of the Wisconsin court
persuasive and have relied on it to uphold certain warrantless
"second entries" made by the police following the termination of
the emergency that justified an initial entry. See, e.g., Hunter
v. Commonwealth, 378 S.E.2d 634 (Va.App. 1989); Smith v. State, 419 So. 2d 563 (Miss. 1982), cert. denied, 460 U.S. 1047 (1983),
overruled on other grounds, Willie v. State, 585 So. 2d 660 (Miss.
1991). See also State v. Tidwell, 888 S.W.2d 736 (Mo.App. S.D.
1994); State v. Jolley, 321 S.E.2d 883 (N.C. 1984); State v.
Norman, 302 S.2d 254 (Miss. 1974).
The facts in the case at bar are analogous to those in the La
Fournier case and the other cases cited above. Officers Ohm and
Boyd, Jr., made a valid emergency entry into Ms. Wofford's home.
They secured the crime scene and called for assistance, and
Sergeant Lonetree and Officer Risley arrived within a reasonable
amount of time to process the crime scene and complete the search
begun by Officers Ohm and Boyd, Jr. If Sergeant Lonetree and
Officer Risley seized only evidence that was observed by Officers
Ohm and Boyd, Jr., in plain view without expanding the scope and
nature of the initial entry made by Officers Ohm and Boyd, Jr.,
then the seizure was proper. The record does not establish that
the evidence seized by Sergeant Lonetree and Officer Risley was in
fact observed in plain view by Officers Ohm and Boyd, Jr. Thus we
must remand for the Trial Court to make that determination. See
State v. Spears, 560 So. 2d 1145 (Ala. Cr. App. 1989); People v.
Reynolds, 672 P.2d 529 (Colo. 1983).
Ms. Wofford next contends that the plain-view exception cannot
apply here because Sergeant Lonetree's and Officer Risley's
discovery of the evidence was not inadvertent. Ms. Wofford points
us to Sergeant Lonetree's testimony that he arrived at the crime
scene and entered the house for the very purpose of collecting
evidence. Thus, says Ms. Wofford, his discovery of evidence inside
the house was intentional rather than inadvertent.
In a different case, Ms. Wofford's argument might be
persuasive. We have said that another of the prerequisites for
applying the plain-view exception is that the discovery of the
evidence must be inadvertent. See Williams v. State, supra;
Johnson v. State, supra. Here, the record clearly supports Ms.
Wofford's contention that Sergeant Lonetree's and Officer Risley's
discovery of the evidence in question was anything but inadvertent.
It is clear to us, however, that the inadvertency requirement
applies to the initial officers' observations and not to those of
officers who follow. Again, if the items seized were inadvertently
viewed by Officers Ohm and Boyd, Jr., then it does not matter that
the later officers entered the house with the purpose of seizing
them.
The Supreme Court of the United States has held that
"inadvertence" is not a "necessary condition" for application of
the plain-view exception in any type of case brought under the
Fourth Amendment. Horton v. California, 496 U.S. 128 (1990).
Thus, insofar as Ms. Wofford's "inadvertence" argument concerns the
Fourth Amendment, the Horton case supplies a sufficient basis for
rejecting the argument. However, Ms. Wofford's motion to suppress
alleged that the seizure of evidence from her home also violated
the Arkansas Constitution. We need not decide here whether we will
follow the Horton case and dispense with the inadvertence
requirement for all cases brought under the Arkansas Constitution.
Thus, insofar as Ms. Wofford's inadvertence argument concerns only
the Arkansas Constitution, we reject it because we believe it is
unnecessary for an officer who enters a residence for the purpose
of continuing another officer's search and collecting evidence that
the other officer observed in plain view to discover the evidence
inadvertently.
2. Ms. Wofford's statements
Ms. Wofford contends her statements should have been
suppressed because (1) they were the fruits of the police's illegal
entry into her home; (2) they were not preceded by adequate Miranda
warnings; and (3) Ms. Wofford neither voluntarily, nor knowingly
and intelligently, waived her constitutional rights before making
the statements. Because we cannot say the Trial Court's ruling on
the admissibility of Ms. Wofford's statements is clearly against
the preponderance of the evidence, we affirm the ruling. Norman v.
State, supra.
a. Fruit of the poisonous tree
We already have established that the warrantless entry of
Officers Ohm and Boyd, Jr., into Ms. Wofford's home was justified
under the emergency exception contained in Ark. R. Crim. P.
14.3(a). Thus, to the extent that Ms. Wofford's incriminating
statements were the result of this entry, they are not inadmissible
because the officers' entry into her home was not unconstitutional.
We need not address this point further.
b. Miranda warnings
When Ms. Wofford was taken by ambulance to the hospital
emergency room, she was not under arrest. She was neither
handcuffed nor told that she was a suspect in the death of her son.
She rode in the ambulance unaccompanied by any police officer.
Officer Chitwood followed the ambulance in his patrol unit and
arrived at the emergency room behind Ms. Wofford. He had not been
instructed to arrest Ms. Wofford. The officer learned from an
emergency medical technician that Ms. Wofford had said in the
ambulance that she had cut her son's wrists.
Attendants at the hospital removed Ms. Wofford's clothes,
glasses, and personal effects and changed her into a hospital gown.
Although Officer Chitwood did not request them, he received Ms.
Wofford's possessions and placed them in a paper bag next to where
he was standing in the treatment room. He later placed the items
into the police's evidence locker.
Officer Boyd, Sr., arrived at the hospital at some point
thereafter. He had been asked to go to the hospital and talk with
Ms. Wofford. Before he entered Ms. Wofford's treatment room,
Officer Chitwood told him about the statement that Ms. Wofford had
made in the ambulance. Nevertheless, Officer Boyd, Sr., testified
that, at the time he began to question Ms. Wofford, he did not
consider her a suspect in her son's death. He testified that, in
light of the condition of the outside door leading to Ms. Wofford's
bedroom and the area around the door, he had not ruled out the
possibility that there had been an intruder. The officer wanted to
question Ms. Wofford about who the perpetrator might have been.
Officer Boyd, Sr., confirmed with the attending doctor that
Ms. Wofford's condition would permit a discussion with her. He
then entered the treatment room. He was out of uniform, but he was
wearing his weapon. Also present in the room were Officers
Chitwood, Colter, and Pitts, all of whom were uniformed and wearing
their weapons. As Officer Boyd, Sr., entered the room, he heard
the nurse ask Ms. Wofford if she was all right and Ms. Wofford
respond that she was. The nurse also asked Ms. Wofford if she knew
where she was, and Ms. Wofford answered that she was in a hospital.
Officer Pitts left the treatment room shortly after Officer Boyd,
Sr., arrived there.
Officer Boyd, Sr., began to question Ms. Wofford. He
initially asked Ms. Wofford if she was all right and told her that
he needed to talk to her about what had happened at her house. Ms.
Wofford indicated that would be "okay." The officer testified that
Ms. Wofford did not appear reluctant to speak with him. She
answered the questions and provided him with general information
about her name, address, date of birth, and the name and age of her
son. She told the officer that her son attended kindergarten. Ms.
Wofford also told Officer Boyd, Sr., where she worked, how long she
had worked there, and that she had worked the day before but was
missing a shift on the day in question. Officer Boyd, Sr., then
asked Ms. Wofford what had happened to her son. She answered, "I
did it. I killed him, that's why I'm going to prison." Prior to
making this statement, Ms. Wofford had not received Miranda
warnings.
Ms. Wofford's surgeon then entered the treatment room and
readied her for surgery. When the surgeon left, Officer Boyd, Sr.,
resumed his interrogation. He told Ms. Wofford that he needed to
discuss what had happened at her house and that he would need to
advise her of her rights. He asked Ms. Wofford if she understood
that, and she answered that she did. The officer asked Ms. Wofford
about her education and verified that she could read and write and
that she had a high school diploma. She said she understood what
he was saying to her. The officer testified that he then gave Ms.
Wofford the following Miranda warnings:
I advised her that she had the right to remain silent.
That anything she said can and will be used against her
in court. I advised her that she had a right to an
attorney present before, during or after questioning, and
that if she could not afford one, then the Court would
appoint one at no cost to her before any questioning if
she wished.
Thereafter, Officer Boyd, Sr., asked Ms. Wofford if she understood
the warnings, and she answered affirmatively.
After advising Ms. Wofford of her rights, Officer Boyd, Sr.,
again asked her what had happened. Ms. Wofford answered that she
killed her son and attempted to set fire to the house so that
Mark's father would not get it. She told the officer that she and
Mark did not like the fact that Mark's father had obtained
visitation rights. She confessed that she killed her son so that
he would not have to see his father. Ms. Wofford explained that
she had smothered her son to death by placing her hand over his
mouth and nose during the previous night. The surgeons then came
to take Ms. Wofford to surgery, and Officer Boyd, Sr., terminated
the interrogation without arresting Ms. Wofford.
Ms. Wofford now contends that the Trial Court should have
suppressed her initial incriminating statement because it was not
preceded by Miranda warnings. Miranda warnings are required only
in the context of custodial interrogation. Solomon v. State, 323
Ark. 178, 913 S.W.2d 288 (1996); State v. Spencer, 319 Ark. 454,
892 S.W.2d 484 (1995). The question here is whether Ms. Wofford
was "in custody" at the time she made her initial incriminating
statement in response to the officer's interrogation. We hold that
she was not in custody.
A person is "in custody" for purposes of the Miranda case when
he or she is
deprived of his freedom of action by formal arrest or
restraint on freedom of movement of the degree associated
with a formal arrest. In resolving the question of
whether a suspect was in custody at a particular time,
the only relevant inquiry is how a reasonable man in the
suspect's shoes would have understood his situation.
Solomon v. State, 323 Ark. at 186, 913 S.W.2d at 292 (citation
omitted). "The initial determination of custody depends on the
objective circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the person
being interrogated." State v. Spencer, 319 Ark. at 457, 892 S.W.2d
at 486.
A reasonable person in Ms. Wofford's situation could not have
believed that she was restrained by the police prior to the time
she made her initial incriminating statement. Ms. Wofford had been
taken to the hospital on account of her injuries and was not
escorted there by the police. When the police entered her room,
they neither arrested her nor indicated in any manner that she was
a suspect. Officer Boyd, Sr., specifically testified that he did
not view Ms. Wofford as a suspect during this segment of the
interrogation and that he suspected that an intruder might have
been responsible. Ms. Wofford suggests that the officer did in
fact suspect her from the outset of his questioning. We point out
that "an officer's subjective and undisclosed view concerning
whether the person being interrogated is a suspect is irrelevant to
the assessment whether the person is in custody." Stansbury v.
California, 511 U.S. 318, 319 (1994). See State v. Spencer, supra.
Even if Officer Boyd, Sr., did harbor suspicions about Ms. Wofford,
nothing in the record suggests such a viewpoint was communicated in
any way to Ms. Wofford.
Although three of the officers in the room were in uniform,
and although all of the officers wore their weapons, none of them
restrained Ms. Wofford or threatened her with the weapons, and only
one of them, Officer Boyd, Sr., confronted Ms. Wofford with any
questions. The tone of the questions, moreover, does not appear to
have been hostile or antagonistic, and the duration of the
questioning was brief. In addition, hospital personnel had, and
appear to have exercised, access to the treatment room throughout
a portion of the interrogation.
Finally, we point out that, while Ms. Wofford's freedom of
movement may have been restrained somewhat during the
interrogation, that confinement resulted only from the
hospitalization that was necessary in light of her injuries rather
than from any conduct on the part of the police. As other courts
have recognized, "confinement to a hospital bed is insufficient
alone to constitute custody." People v. Milhollin, 751 P.2d 43, 50
(Colo. 1993)(emphasis added)(citations omitted). We agree with the
Supreme Court of Delaware that "there is no per se `hospital rule'
in a custody inquiry because each case must be decided on its own
facts." DeJesus v. State, 655 A.2d 1180, 1191 (Del.Supr. 1995).
In the absence of other indicia of custody, we cannot say that Ms.
Wofford's health-related confinement alone produced a custodial
situation because her confinement was not the result of police
compulsion. Given the totality of the circumstances, we cannot say
that the Trial Court erred in concluding that Ms. Wofford was not
in custody at the time she made her first incriminating statement.
Ms. Wofford also contends that the Trial Court should have
suppressed her second incriminating statement that she made after
receiving Miranda warnings from Officer Boyd, Sr. She maintains
that the warnings were deficient because they failed to apprise her
that she had the right to terminate the interrogation at any time.
Even if we could assume, and we need not do so, that Ms.
Wofford was in custody after she confessed she had killed her son,
we cannot say that the warning given to her was deficient. The
Miranda case establishes that a defendant has a right to cut off
questioning, but it does not require the police to give a warning
advising a defendant of this particular right. Although certain
passages in the opinions of this Court and the Supreme Court of the
United States have suggested that such a warning is required or at
least desirable, see Colorado v. Spring, 479 U.S. 564, 574 (1987);
Oregon v. Elstad, 470 U.S. 298, 315 n.4 (1985); Mauppin v. State,
309 Ark. 235, 247, 831 S.W.2d 104, 110 (1992), quoting Colorado v.
Spring, supra; Bushong v. State, 267 Ark. 113, 122, 589 S.W.2d 559,
564 (1979), neither Ms. Wofford nor our own research has produced
a case actually holding that such a warning is required by the
Miranda decision. In fact, many courts have considered this
question and have held that the police are not required to give the
warning proposed by Ms. Wofford. See, e.g., State v. Fecteau, 568 A.2d 1187 (N.H. 1990); Commonwealth v. Lewis, 371 N.E.2d 775 (Mass.
1978); United States v. Davis, 459 F.2d 167 (6th Cir. 1972). But
see United States v. DiGiacomo, 579 F.2d 1211, 1214 (10th Cir.
1978)(stating that the warning is not required under Miranda but
that the failure to give it could be a factor in determining
whether custodial statements are voluntary).
Although we agree with the Supreme Judicial Court of
Massachusetts that it is "the better practice" for the police to
advise an arrested person that he or she may cut off questioning at
any moment, Commonwealth v. Lewis, 371 N.E.2d at 777, we are not
prepared to say that Officer Boyd, Sr.'s failure to give it to Ms.
Wofford violated the Supreme Court's holding in the Miranda case.
c. Waiver
Finally, Ms. Wofford contends that the Trial Court should have
suppressed her statements because they did not follow a voluntary
waiver of her rights or a knowing and intelligent waiver of her
rights. The Trial Court ruled that the waiver was voluntary but
did not rule on the issue of whether the waiver was also knowing
and intelligent. We have recognized that the question of
voluntariness and the question of a knowing and intelligent waiver
are distinct and separate inquiries. See Mauppin v. State, supra.
Thus, the Trial Court's ruling with respect to the voluntariness
issue could not have encompassed Ms. Wofford's argument that she
did not knowingly and intelligently waive her constitutional
rights. Because she failed to obtain a ruling on that discrete
issue, it is not preserved for appeal, and we do not address it.
Bowen v. State, 322 Ark. 483, 911 S.W.2d 555, cert. denied, 116 S. Ct. 1861 (1996).
A statement must be voluntary "in the sense that it was the
product of a free and deliberate choice rather than intimidation,
coercion, or deception." Mauppin v. State, 309 Ark. at 246-47, 831 S.W.2d at 109 (1992), quoting Moran v. Burbine, 475 U.S. 412, 421
(1986).
When voluntariness of a statement is an issue, we make an
independent determination based on the totality of the
circumstances surrounding the statement. We will reverse
the ruling of the trial court only if that ruling was
clearly against the preponderance of the evidence. A
custodial statement is presumed involuntary, and the
burden is on the state to show that the statement was
voluntarily given. . . . . In making a determination of
whether a statement was voluntarily made, this court will
consider many factors, among which are the age, education
and intelligence of the accused; the length of
questioning; the advice or lack of advice on
constitutional rights; the repeated or prolonged nature
of questioning; and the use of mental or physical
punishment.
McCoy v. State, 325 Ark. 155, 160, 925 S.W.2d 391, 393-94 (1996)
(citations omitted). See also Stephens v. State, 328 Ark. 81, 85,
941 S.W.2d 411, 413-14 (1997).
The testimony at the suppression hearing supports the Trial
Court's ruling finding Ms. Wofford's statement to be voluntary.
There was no testimony of police-sponsored coercion or duress or
any other type of misconduct. Although Ms. Wofford may have been
in a weakened physical or mental condition at the time of making
her statements, that fact would not render the statements
involuntary absent a finding of police misconduct. See Stephens v.
State, supra. Although Ms. Wofford may have been dazed earlier in
the day, and although the medical evidence indicates she suffered
from depression, the testimony of Officers Chitwood and Boyd, Sr.,
shows that Ms. Wofford was alert in the treatment room and able to
converse coherently with those around her. The questioning was
preceded by adequate Miranda warnings where necessary, and it was
not unduly long. Ms. Wofford obtained a high-school education and
was holding down a job. In these circumstances, we cannot say that
the Trial Court's ruling that the statements were voluntarily made
is clearly against the preponderance of the evidence.
3. Rule 4-3(h)
In closing, we note that, in the typical case involving a life
sentence, we would ordinarily examine the record pursuant to Ark.
Sup. Ct. R. 4-3(h) to determine whether there were other rulings
not briefed by the parties that constituted prejudicial error. We
have not done so in this case, as it arises from a conditional plea
of nolo contendere. As mentioned above, we have reviewed only the
adverse determination of Ms. Wofford's pretrial motion to suppress
evidence. Ark. R. Crim. P. 24.3(b). In appeals from pleas of
guilty or nolo contendere, we are not required to undertake the
additional review prescribed by Rule 4-3(h). Smith v. State, 321
Ark. 580, 906 S.W.2d 302 (1995).
We remand the case to the Trial Court to conduct an additional
hearing to determine whether Officers Ohm and Boyd, Jr., observed
in plain view the items later seized by Sergeant Lonetree and
Officer Risley. The transcript of the hearing shall be forwarded
to this Court along with the Trial Court's written findings.
Remanded.
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