Millsap v. State , 488 S.W.3d 559 ( 2016 )

Cite as 2016 Ark. App. 192
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-733
Opinion Delivered April 6, 2016
MARCUS O. MILLSAP APPEAL FROM THE POPE COUNTY
APPELLANT CIRCUIT COURT
[NO. CR-2014-207]
V.
HONORABLE WILLIAM M.
STATE OF ARKANSAS PEARSON, JUDGE
APPELLEE
AFFIRMED
BRANDON J. HARRISON, Judge
Marcus Millsap entered a conditional plea of no contest to delivery of a controlled
substance and possession with the purpose to deliver, and he now appeals, arguing that the
circuit court erred in denying his motion to suppress. We affirm.
I. Facts
On 1 May 2014, agents working with the Fifth Judicial Drug Task Force (DTF)
met with a confidential informant to set up a controlled purchase of methamphetamine
from Millsap. In the early morning hours of May 2, after the purchase had been
completed, officers initiated a traffic stop of Millsap and arrested him. In June 2014,
Millsap was charged with delivery of methamphetamine, possession with the purpose to
deliver, and possession of a controlled substance.
On 8 April 2015, Millsap filed a motion to suppress any and all evidence seized
after the warrantless traffic stop and his arrest, asserting that there was no probable cause to
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stop his vehicle. On 23 April 2015, Millsap amended his motion to suppress to include
his custodial statement made after his arrest. He argued that he had asked that the
recording of his interview be stopped and had asserted his Miranda rights, but the State
violated Ark. R. Crim. P. 4.7 (2014) when it failed to preserve, on audio/visual
equipment, the part of the interview when he verbally invoked his Miranda rights during
the interview. Rule 4.7 governs the recording of custodial interrogations.
The circuit court held a suppression hearing on 4 May 2015. Tony Haley, a
narcotics investigator with the Arkansas State Police, testified that on 1 May 2014, he used
confidential informant Bruce Hurley to make a controlled buy of methamphetamine. He
explained that he had known Hurley for approximately ten years, that Hurley had an
extensive criminal history, and that in exchange for assisting the police, Hurley would not
be charged with two counts of delivery of methamphetamine. Haley testified that he had
been familiar with Millsap for five or six years and that Hurley was supposed to purchase
four ounces of methamphetamine from Millsap for $3600. Haley explained that the
transaction was scheduled to occur at Hurley’s residence on 1 May 2014 and that on the
afternoon of May 1, he met with Hurley at his residence, searched Hurley’s person and
residence for controlled substances and found none, and then listened to Hurley make
telephone contact with Millsap. Once Millsap was on his way to the residence, Haley
equipped Hurley with an electronic-monitoring device, set up a video recorder inside
Hurley’s residence, and gave Hurley $3600 in buy money. Haley then hid in an
abandoned car in the front yard and observed the residence.
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Haley watched Millsap and a female, identified as Christy Hamilton, arrive at
Hurley’s residence. Haley stated that Millsap and Hamilton were in the residence less than
thirty minutes, and then they, along with Hurley, left in Millsap’s vehicle. Hurley texted
Haley and told him that the deal had not yet taken place and that they were going down
the road to look at a trailer house that Millsap was interested in buying. After
approximately one hour, the three of them returned and went back into Hurley’s
residence. After another hour, Millsap and Hamilton left the residence. Haley then
entered the residence, confirmed with Hurley that the purchase had taken place, and
retrieved approximately two ounces of methamphetamine from Hurley. Haley then gave
the order to nearby officers to stop Millsap’s vehicle and arrest him. Other officers picked
up Haley, and they proceeded to the Russellville DTF office. Haley testified that he
arrived at the office at approximately 1:15 a.m. on May 2; Deputy Noyes with the Pope
County Sheriff’s Office brought Millsap in and escorted him to an interview room soon
after.
Haley stated that Millsap was in the interview room approximately five minutes
before he and Agent Chad Stephenson went into the room. Haley said that he told
Millsap what he was charged with and that the officers wanted to speak to him, and that
he advised Millsap of his Miranda rights. Haley explained that he read the Miranda-rights
form to Millsap and that Millsap acknowledged and understood his rights. Millsap
initialed the Miranda-rights form and signed a waiver of rights, which was introduced as
State’s Exhibit 1. Haley stated that the interview room was set up so that interviews are
recorded and that the recorder was on that night. The recording system had only been
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operational for a couple of months, and only a few interviews had been conducted since
the recording system’s installation. Haley explained that after Millsap had signed the
Miranda waiver of rights, he asked if the interview was being recorded, and Haley
confirmed that it was. According to Haley, Millsap then stated, “If you will turn it off, I
will talk to you.” Haley asked Agent Stephenson to turn off the recorder, which he did,
and Haley then proceeded to question Millsap about the drugs that had been found in his
vehicle. Haley said that Millsap took ownership of the drugs and said that he was selling
drugs “to support [his] habit.” Millsap then told Haley about other individuals from
whom Millsap could purchase a large amount of methamphetamine.
Haley stated that Millsap was forty-eight years old, very intelligent, and familiar
with the legal system. He explained that Millsap had previous convictions for possession
of a controlled substance, delivery of a controlled substance, drug paraphernalia, and
retaliation against a witness. Haley denied making any threats or promises to Millsap.
Haley also explained that in preparing this case for prosecution, he attempted to
recover the recording of Millsap’s interview, up to the point where he asked that the
recorder be turned off, but the recording was not there. On cross-examination, he
confirmed that all verbal communications between himself and Millsap, including his
explanation of Millsap’s Miranda rights and Millsap’s request to turn off the recorder, had
been erased. He also testified that he was aware that Hamilton was Hurley’s ex-wife.
Haley explained that Hurley was not a “good citizen” but that was why he took steps to
eliminate the opportunity for Hurley to lie to him. In response to the question of
whether Hurley might have motive to set up Millsap, Haley stated, “Anything is
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possible.” He also explained that the video recorder inside Hurley’s residence did not
function properly and acknowledged that he could not see what had occurred inside the
residence. He also acknowledged that in the audio recording of the controlled buy, the
words “drugs” or “controlled substances” are not used and that when Millsap says he will
have to meet Hurley in Little Rock later “to get the other two,” he does not identify
what he is talking about. Haley agreed that he relied on Hurley.
Jeffrey Noyes, a patrol division supervisor for the Pope County Sheriff’s Office,
testified that on May 1, 2014, he assisted the DTF by stopping a vehicle for them. He
explained that shortly before 1:00 a.m. on May 2, DTF officers called him and gave him a
description of Millsap’s car. Noyes located the vehicle a short time later and arrested
Millsap, who was driving the car. Noyes searched Millsap and found a large amount of
currency, roughly $3700, and a small plastic bag containing what Noyes believed to be
methamphetamine. Noyes transported Millsap to the DTF office and placed him in an
interview room.
David Davis, a coordinator for the DTF, testified that he participated in the search
of Millsap’s car after his arrest. He testified that between the passenger seat and the
console, he found a black bag containing two ziploc baggies of what he believed to be
methamphetamine and a large amount of cash. He stated that the money found in the
black bag matched the money that was given to the informant for the controlled buy, and
the bag contained about three ounces of methamphetamine. Davis explained that as the
DTF coordinator, he was responsible for the recording equipment in the interview room.
Davis said that he thought the recordings would be kept until the hard drive was full,
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which would take months, but after the recording in this case could not be retrieved, he
learned that recordings were only kept for a thirty-day period and then deleted. He said
that he had since taken steps to rectify the situation.
Chad Stephenson, an officer with the Pope County Sheriff’s Office who is assigned
to the DTF, testified that he participated in the interview with Millsap on May 2, that
Haley advised Millsap of his Miranda rights, and that Millsap asked them to shut off the
recording device. Stephenson explained that he left the room to shut off the recorder and
then returned to the interview room, where Millsap said that the drugs in the car
belonged to him and told officers of other people from whom he could buy
methamphetamine.
Millsap testified too. He said that when he was stopped, he did not understand that
he was arrested, only that he was wanted for questioning. He testified that Deputy Noyes
took him to the DTF office, and he agreed that he asked the officers to turn off the
recording of the interview. Millsap agreed that it was his understanding that whatever he
said would not be used against him, and he also agreed that he invoked his right to
counsel. The officers, according to Millsap, continued to talk to him, just “casual
conversation,” after he asked for an attorney. On cross-examination, he agreed that no
threats had been made against him, that he was familiar with the Miranda rights, and that
those rights had been given to him in this case. He also stated that he invoked his right to
an attorney after he had asked the officers to turn off the recording. When asked why he
did not invoke his right to an attorney while the recording was still on, Millsap said that
he “was in a very nervous situation.” And he repeated that any questions the police asked
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after he had requested an attorney were “just conversation” and that he “didn’t consider it
questioning.” On redirect, Millsap reiterated that he did not believe that what he said to
the police would be used against him because it was “off the record.”
Tony Haley was recalled and testified that Millsap did not request an attorney at
any time during the interview.
In closing arguments, the defense argued that there was no showing of reliability of
the informant and that the stop was not based on probable cause. The defense also argued
that the State had a duty to preserve any recording under Ark. R. Crim. P. 4.7.
From the bench, the court made the following findings. First, it found that “there
was reasonable suspicion to believe that a felony had taken place. Thus there was
authority to arrest without a warrant based on the facts of the controlled buy.” Second,
the court declined to read Rule 4.7 as a rule requiring automatic exclusion if there is a
failure to preserve a recording. The court found that Davis gave a “satisfactory
explanation” of why the recording was deleted and that there was no bad faith on the part
of the police. And finally, the court found that whether Millsap invoked his right to
counsel was “purely a credibility issue,” which the court resolved in favor of the State. It
stated,
I’m going to find that he did not, and I credit the testimony of Officer
Stephenson and Officer Haley the best evidence of that. While you don’t
have a recording, which you didn’t need one because Mr. Millsap testified
all that occurred—supposedly occurred after the recording was turned off.
The Miranda rights form is the best evidence, along—coupled with Mr.
Millsap’s familiarity with the Miranda warnings through his previous criminal
history and the fact that he would be advised of his Miranda rights and
understand his Miranda rights and then get the recorder turned off, which
they complied with his request, and then he invoked counsel just doesn’t
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make sense. It seems to me a person would invoke counsel while the
recorder was on to preserve that important right.
The motion to suppress was therefore denied.
Following this ruling, Millsap entered a conditonal plea of no contest to delivery of
a controlled substance and possession with purpose to deliver and was sentenced to ten
years’ imprisonment on each count, to run consecutively. (The possession charge was
nolle prossed.) Millsap has now appealed, arguing that the circuit court erred in denying
his motion to suppress.
II. Standard of Review
When reviewing a circuit court’s denial of a motion to suppress evidence, the
appellate court conducts a de novo review based on the totality of the circumstances,
reviewing findings of historical facts for clear error and determining whether those facts
give rise to reasonable suspicion or probable cause, giving due weight to the inferences
drawn by the circuit court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding
is clearly erroneous, even if there is evidence to support it, when the appellate court, after
reviewing the entire evidence, is left with the definite and firm conviction that a mistake
has been made. Id. We defer to the circuit court’s superior position in determining the
credibility of the witnesses and resolving any conflicts in the testimony. Id.
III. Suppression of Evidence From the Traffic Stop
An officer may stop a vehicle and make a warrantless search if it is on a public
highway, and he or she has reasonable cause to believe the vehicle contains evidence
subject to seizure, and the circumstances require immediate action to prevent destruction
or removal of the evidence. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989).
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Reasonable cause as required by Ark. R. Crim. P. 14.1 exists when the officers have
reasonably trustworthy information, which must be more than mere suspicion, that the
stopped vehicle contains evidence subject to seizure and a person of reasonable caution
would be justified in believing an offense has been committed or is being committed. Id.
The test for reasonable cause for stopping and searching a vehicle depends on the
collective information of the police officers and not solely on the knowledge of the officer
stopping the vehicle. Id.
Millsap argues here, as he did below, that the warrantless traffic stop lacked
probable cause. He asserts that the State failed to establish the reliability of the informant,
citing Hurley’s criminal history and the circumstances of the controlled buy as described
by Haley. Millsap specifically contends that Haley “admitted that he had to rely upon
hearsay of the unreliable informant to know whether a controlled buy had occurred and
to order the stop of the vehicle.”
Millsap compares this case to Jones v. State, 2011 Ark. App. 683, in which this court
affirmed the denial of a motion to suppress under similar facts. In Jones, police officers set
up a controlled buy between the informant and a person named Latisha Longnecker.
Officers watched the informant enter an apartment; Longnecker enter the apartment;
Longnecker exit the apartment and get into the passenger seat of a white Mitsubishi driven
by Jones (who was previously identified by the informant as “the dope guy”); Longnecker
reenter the apartment; and the informant exit the apartment and present a small bag of an
off-white, rock-like substance, later identified as cocaine, to the officers. Jones argued that
because the police did not testify that the informant was reliable, they were “relying on
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the hearsay of an unproven person to use as a basis for the stop.” Id. at 3. In affirming, this
court explained,
Here, the officers observed the controlled buy visually to the extent possible
and also listened to the conversation between the informant and
Longnecker. Based on their observations, they knew that Longnecker did
not have the drugs when the informant first arrived. After going out to the
white Mitsubishi, however, she returned with what she represented to be
drugs. Based on the officers’ own observations, it was reasonable to
conclude that the Mitsubishi driver was involved in the drug transaction.
Therefore, probable cause existed regardless of the informant’s reliability.
Id. at 4–5. Millsap argues that Jones is distinguishable from the present case because “Haley
admits that he could not observe the transaction” and “the informant had plenty of
opportunity to retrieve [the] controlled substance, and put money in the Appellant’s
vehicle other than from the Appellant.”
We are not persuaded that Jones is distinguishable in a meaningful way. In Jones,
the officers could not see an exchange of contraband between Jones and Longnecker or
Longnecker and the informant, but we concluded that from the totality of the
circumstances, including the officers’ observation, the audio of the conversation between
the informant and Longnecker, and the informant’s possession of drugs immediately after
the transaction, that the stop of Jones’s car was supported by probable cause. The same
analysis applies here: Haley did not actually see the purchase of methamphetamine that
took place inside Hurley’s residence; but based on the totality of the circumstances,
including Haley’s observation of Millsap’s arrival and departure, the audio of the
conversation between Hurley and Millsap, and Hurley’s possession of methamphetamine
immediately after his interaction with Millsap, we hold that probable cause existed to
justify the warrantless stop and arrest of Millsap, regardless of the informant’s reliability.
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IV. Suppression of the Custodial Statement
A statement made while in custody is presumptively involuntary, and the burden is
on the State to prove by a preponderance of the evidence that a custodial statement was
given voluntarily and was knowingly and intelligently made. See Grillot v. State, 353 Ark.
294, 107 S.W.3d 136 (2003). To determine whether a waiver of Miranda rights is
voluntary, this court looks to see if the confession was the product of free and deliberate
choice rather than intimidation, coercion, or deception. See id.
For his first argument under this point, Millsap appears to argue that the officers
employed some type of deception in obtaining his statement. He states that he knew
Haley “from [a] previous relationship” and that “he trusted Haley when Haley promised
him that he could talk off the record and that his statement would not be used against
him.” But Millsap never made this argument to the circuit court. Arguments not raised
below are waived, and parties cannot change the grounds for an objection on appeal but
are bound by the scope and nature of the objections and arguments made at trial. See
Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). 1
Millsap also argues that the circuit court should have suppressed the use of his
custodial statement due to the State’s failure to comply with Rule 4.7 of the Arkansas
Rules of Criminal Procedure. Rule 4.7 provides that, whenever practical, a custodial
interrogation should be electronically recorded. Ark. R. Crim. P. 4.7(a). The rule also
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The record reveals that Millsap never testified that Haley made any promises to
him and specifically never testified that Haley promised his statement would be “off the
record” and not used against him. Millsap only agreed during direct examination that it
was his “understanding” that whatever he said would not be used against him.
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provides that in determining the admissibility of any custodial statement, the court may
consider, together with all other relevant evidence and consistent with existing law,
whether an electronic recording was made, or if not, why an electronic recording was not
made. Ark. R. Crim. P. 4.7(b)(1). However,
(2) The lack of a recording shall not be considered in determining the
admissibility of a custodial statement in the following circumstances:
....
(F) a statement made during a custodial interrogation by a suspect who
requests, prior to making the statement, to respond to the interrogator’s
questions only if an electronic recording is not made of the statement,
provided that an electronic recording is made of the statement of agreeing to
respond to the interrogator’s question, only if a recording is not made of the
statement[.]
Ark. R. Crim. P. 4.7(b). Finally, the rule dictates that an electronic recording must be
preserved until the later of (1) the date on which the defendant’s conviction for any
offense relating to the statement is final and all direct and postconviction proceedings are
exhausted, or (2) the date on which the prosecution for all offenses relating to the
statement is barred by law. Ark. R. Crim. P. 4.7(c).
Millsap agrees that there is no dispute that he asked for the recording to be turned
off. He does argue, however, that under Rule 4.7(c), the State had a duty to preserve the
recording that was made until the time he asked for it to be stopped, and because that was
not done, his custodial statement (made after the recording had been stopped) should have
been suppressed.
We disagree. Rule 4.7 does not require automatic exclusion, and subsection
(b)(2)(F) clearly states that the lack of a recording is not considered in determining the
admissibility of a custodial statement if the person interviewed asked for the recording to
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be stopped, which is what happened here. We affirm the circuit court’s denial of the
motion to suppress.
Affirmed.
GLADWIN, C.J., and WHITEAKER, J., agree.
Laws Law Firm, P.A., by: Hugh R. Laws, for appellant.
Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.
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