State v. Gray

STATE of Arkansas v. Mike GRAY

CR 97-460                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 30, 1997


1.   Criminal law -- abandonment -- issue turns on facts of case. -- The
     issue of abandonment necessarily turns on the facts in a given
     case.

2.   Appeal & error -- appeal by State -- resolution of factual issue did not
     require interpretation of criminal rules -- not appealable. -- Where the
     trial courtþs decision in this case necessarily turned on
     whether appellee in fact abandoned a bag of marijuana, the
     supreme court concluded that the resolution of the issue did
     not require an interpretation of its criminal rules with
     widespread ramifications; where the trial court acts within
     its discretion after making an evidentiary decision based on
     the facts at hand or even a mixed question of law and fact,
     the supreme court will not accept an appeal by the State under
     Ark. R. App. P.--Crim. 3(c).

3.   Appeal & error -- appeal by State -- resolution of mixed question of law
     and fact not appealable. -- Where the issue of appellee's standing
     to challenge the validity of the search warrant presented a
     mixed question of law and fact, requiring for resolution the
     trial court to determine whether appellee manifested a
     subjective expectation of privacy in another personþs
     residence and whether society was prepared to recognize this
     expectation as reasonable, the supreme court held that it was
     not appealable.

4.   Appeal & error -- appeal by State -- accepted only when holding would
     establish important precedent -- appeal dismissed. -- The supreme court
     only accepts appeals by the State when its holdings would
     establish important precedent; where neither issue presented
     by the State involved the correct and uniform administration
     of justice, the supreme court dismissed the appeal.


     Appeal from Randolph Circuit Court; Harold Erwin, Judge;
dismissed.
     Winston Bryant, Att'y Gen., by:  Kelly S. Terry, Asst. Att'y
Gen., for appellant.
     Castleman Law Firm, by: Bob Castleman, for appellee.

     W.H. "Dub" Arnold, Chief Justice.
     The State brings this interlocutory appeal under Ark. R. App.
P.--Crim. 3(c), asserting the grounds that the trial court (1)
improperly suppressed a one-pound bag of marijuana allegedly
abandoned by appellee Mike Gray; and (2) erroneously concluded that
appellee had standing to challenge the validity of a search warrant
to search another personþs residence.  The Attorney General
maintains, as it is required to do under Rule 3(c), that the
correct and uniform administration of justice requires our review
of the trial courtþs suppression order.  Because we conclude that
neither issue raised by the State involves the correct and uniform
administration of justice, we dismiss the appeal.
     On June 24, 1994, officers with the Third District Judicial
Task Force met with a confidential informant to arrange an
undercover sale of marijuana and crystal methamphetamine to Lavern
Bruton at his residence in Pocahontas, Arkansas.  Later that
evening, the informant went to Brutonþs residence with ten pounds
of marijuana and an eight-ball of crystal methamphetamine that had
been provided to him by the task force.  While the informant was
inside the residence, Bruton telephoned appellee Mike Gray and
instructed him to come to his house.  When appellee arrived in a
silver van, officers who were conducting surveillance observed
Bruton come outside and sell him one pound of marijuana.  After the
sale, appellee drove away from the residence.  Soon thereafter,
officers executed a search warrant of the Bruton residence and
recovered nine pounds of marijuana.  When officers stopped appellee
in his van, they found no controlled substances.  However, while
appellee was stopped, officers found a bag of marijuana in a ditch. 
The mark on the bag matched the markings on the other bags found in
the Bruton residence that the informant had given Bruton.
     Appellee was charged by felony information with possession of
a controlled substance with intent to deliver.  Thereafter, he
filed a pretrial motion to suppress the one-pound bag of marijuana
on the ground that it had been obtained pursuant to an invalid
search warrant of Brutonþs residence.  He further argued that he
was on Brutonþs private property upon Brutonþs invitation when he
was þunlawfully observedþ by the officers.  He further claimed that
the warrant to search Brutonþs residence was invalid because it was
an þanticipatory warrant.þ  The trial court conducted a suppression
hearing at which Bruton testified, confirming that he had indeed
delivered one pound of marijuana to appellee on the night in
question.  At the conclusion of the hearing, the trial court
granted appelleeþs motion and suppressed the bag of marijuana found
in the ditch, from which the State now brings this interlocutory
appeal.
     The first issue presented is whether the trial court should
have determined that appellee abandoned the marijuana in question
and thus abandoned his rights under the Fourth Amendment.  Before
addressing the merits of this claim, we must first decide whether
this issue is properly before us under Rule 3(c).  Specifically, we
must decide whether the correct and uniform administration of
justice requires us to review this point.
     In support of its argument, the State refers us to three cases
regarding abandonment of Fourth Amendment rights.  See Edwards v.
State, 300 Ark. 4, 775 S.W.2d 900 (1989) (cocaine admissible where
appellant tossed aside container of cocaine when he saw officers
approaching him); Wilson v. State, 297 Ark. 568, 765 S.W.2d 1
(1989) (jacket and gun left at friendþs home held abandoned); and
Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989) (appellant who
fled his vehicle after traffic stop abandoned any expectation of
privacy in car and its contents).  A review of these decisions
illustrates that the issue of abandonment necessarily turns on the
facts in a given case.  See State v. Tucker 268 Ark. 427, 428, 597 S.W.2d 584 (1980) (þ[A]bandonment is a fact question generally
determined by a combination of acts and intentþ).
     Because the trial courtþs decision in the present case
necessarily turned on whether appellee in fact abandoned the
marijuana, we must conclude that the resolution of this issue does
not require an interpretation of our criminal rules with widespread
ramifications.  See State v. Hart, 329 Ark. 582, ___ S.W.2d ___
(1997); citing State v. Harris, 315 Ark. 595, 597, 868, S.W.2d 488
(1994):
          Where the trial court acts within its
          discretion after making an evidentiary
          decision based on the facts at hand or even a
          mixed question of law and fact, this court
          will not accept an appeal under Ark. R. Crim.
          P. 36.10 (now Ark. R. App. P.--Crim. 3(c)).

We reach a similar conclusion regarding the Stateþs second
allegation of error; that is, that the trial court erred in
determining that appellee had standing to challenge the validity of
the search warrant obtained to search Brutonþs residence. 
Resolution of this issue required the trial court to determine
whether appellee manifested a subjective expectation of privacy in
Brutonþs residence and whether society is prepared to recognize
this expectation as reasonable.  See Dixon v. State, 327 Ark. 105,
937 S.W.2d 742 (1997).  Because this issue presented a mixed
question of law and fact, it too is not appealable.
     It is well-settled that we only accept appeals by the State
when our holding would establish important precedent.  State v.
Hart, supra; State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997);
State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993).  As neither
issue presented by the State involves the correct and uniform
administration of justice, we dismiss the appeal.
     Appeal dismissed.
     Glaze, J., dissents.


                 Tom Glaze, Justice, dissenting.
     I respectfully dissent.  The majority court misreads appellee
Mike Gray's and the State's briefs.  This case does not deal only
with abandonment of the one pound of marijuana with which Gray was
charged.  Nor is this appeal about a trial judge who failed to
follow or misapplied established precedent concerning abandonment
of contraband.  The issue argued and considered by the trial judge,
and now on appeal by both parties, is as follows:  Assuming Gray
had no standing to suppress the marijuana because he threw it from
his vehicle and abandoned it, did other earlier events, occurring
that same evening, constitute an illegal seizure that made the
marijuana the product of an unlawful seizure and therefore
inadmissible?  Gray cites Rule 16.2(a)(4) of the Arkansas Rules of
Criminal Procedure in support of his argument that the trial court
correctly suppressed the marijuana as having been unlawfully
seized.  
     Gray's argument is that the one-pound bag of marijuana that
was thrown from his vehicle had earlier been illegally seized by
Officer Poe.  Gray explains that, earlier the same evening when he
was arrested, Poe was unlawfully positioned on the private property
of Lavern Bruton when Poe saw Bruton come out of his house to enter
Gray's car parked in the driveway.  Poe witnessed Bruton and Gray
transact the sale of marijuana.  Gray argues he had a legitimate
expectation of privacy while his car was parked in Bruton's
driveway, and because Poe was on Bruton's property without his
consent, the one-pound bag of marijuana was deemed illegally seized
at that stage.  Specifically, Gray, utilizing language in Rule
16.2(a)(4), urges that the one pound of marijuana suppressed by the
trial judge had been obtained as a result of "other evidence"
unlawfully obtained.  That "other evidence," he claims, was Officer
Poe's unlawful observation of Gray.
     The State points out that, although our court has never
addressed the issue raised here, other appellate courts have, and
held the defendant in such circumstances does not have a legitimate
expectation of privacy in an open driveway.  Again, the issue
presented is precedent setting and, in my view, worthy of this
court's consideration under Ark. R. App. P.--Crim. 3(c).  The
precedent setting question aside, this court has said that, even
when it has already decided the issue presented in a case and has
created precedent which will assure the correct application of the
law, the court still will permit an appeal that will foster uniform
application of the law.  State v. Rice, 329 Ark. 219, 947 S.W.2d 3
(1997); see also State v. Dennis, 318 Ark. 80, 883 S.W.2d 811
(1994).  At the least, that is the situation here.
     Finally, I would be remiss if I failed to mention that even
Gray in no way suggests by argument that the State's appeal should
not lie.  Because I believe the Fourth Amendment issue and needed
interpretation of Rule 16.2 fit well within the dictates of
Criminal Appellate Rule 3(c), I would grant this appeal.