{ "id": 6136656, "name": "Jerry MORROW v. STATE of Arkansas", "name_abbreviation": "Morrow v. State", "decision_date": "2001-03-07", "docket_number": "CA CR 00-759", "first_page": "32", "last_page": "36", "citations": [ { "type": "official", "cite": "73 Ark. App. 32" }, { "type": "parallel", "cite": "41 S.W.3d 819" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "280 Ark. 453", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744800 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/280/0453-01" ] }, { "cite": "9 Ark. App. 23", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136283 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/9/0023-01" ] }, { "cite": "49 Cal. Rep. 501", "category": "reporters:state", "reporter": "Cal.", "year": 1966, "opinion_index": 0 }, { "cite": "267 Ark. 1138", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719788 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "1140", "parenthetical": "citing People v. Evans, 49 Cal. Rep. 501 (1966)" }, { "page": "256", "parenthetical": "citing People v. Evans, 49 Cal. Rep. 501 (1966)" } ], "opinion_index": 0, "case_paths": [ "/ark/267/1138-01" ] }, { "cite": "301 Ark. 607", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885467 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0607-01" ] }, { "cite": "307 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902466 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0336-01" ] }, { "cite": "70 Ark. App. 122", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138572 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/70/0122-01" ] } ], "analysis": { "cardinality": 440, "char_count": 7192, "ocr_confidence": 0.744, "pagerank": { "raw": 9.922650026626476e-08, "percentile": 0.5361198664478122 }, "sha256": "8f8029692850454485c7c0f44c8698a07f37f3e95ecb662018aacfbf499c6155", "simhash": "1:bbea29441f6909ae", "word_count": 1180 }, "last_updated": "2023-07-14T14:33:57.447032+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Jennings and Neal, JJ., agree." ], "parties": [ "Jerry MORROW v. STATE of Arkansas" ], "opinions": [ { "text": "JOHN F. STROUD, Jr., Chief Judge.\nAppellant, Jerry Morrow, J entered a conditional plea of guilty to the charges of manufacturing a controlled substance and simultaneous possession of drugs and firearms. He was sentenced to nine years in the Arkansas Department of Correction for each offense, with the sentences to run concurrently, and ordered to pay court costs of $150. His sole point on appeal is that the trial court erred in denying his motion to suppress evidence found during the execution of a search warrant for his residence. We affirm.\nAt the hearing on appellant\u2019s motion to suppress, Officer William Kelley of the Fifth Judicial District Drug Task Force testified that on July 31, 1999, he applied for a search warrant for appellant\u2019s house based upon information he received from Kathy Lehman, a private citizen. In the affidavit, Kelley stated that he and another officer interviewed Lehman during the first week in July regarding an incident in which appellant had beaten and choked Lehman. During this interview, Lehman expressed her anger toward appellant, and that she wanted to assist in an investigation of his drug activity. Lehman told the officers that appellant had marijuana every time she was at his house, and on one occasion, he had methamphetamine. She also stated that she had been present when appellant had sold marijuana to other individuals, and that she had used methamphetamine on one occasion while at appellant\u2019s house. In the affidavit, Officer Kelley wrote that he \u201cinstructed Lehman to attempt to make amends with Morrow in an attempt to have her witness his possession and dealing of marijuana.\u201d\nOn July 26, July 28, and July 30, 1999, Lehman went to appellant\u2019s house, where she looked in a \u201ccollection box\u201d and observed quantities of marijuana, a hand scale, seeds, and marijuana roaches. She also observed persons smoking marijuana, including appellant, and she witnessed appellant\u2019s sale of marijuana to at least two persons. Furthermore, information she relayed about the manner in which appellant transported the marijuana corroborated independently-gained information contained in the drug task force\u2019s intelligence files. Based upon Lehman\u2019s information, Officer Kelley sought and received a search warrant for appellant\u2019s house. The search yielded, among other things, marijuana plants, a bag of green, leafy substance, and two guns.\nWhen reviewing the trial court\u2019s denial of a motion to suppress, the appellate courts make an independent determination based on the totality of the circumstances and reverse only if the trial court\u2019s ruling was clearly against the preponderance of the evidence. Embry v. State, 70 Ark. App. 122, 15 S.W.3d 367 (2000). On appeal, appellant contends that the trial court erred in denying his motion to suppress because Lehman was acting as an agent of the State when she observed the activity that formed the basis for the search warrant. He bases this argument on the fact that in the affidavit, Officer Kelley stated that he \u201cinstructed\u201d Lehman to make amends with Morrow so that she could witness his drug trafficking.\nThe Fourth Amendment\u2019s prohibition against unreasonable searches and seizures does not apply to searches conducted by private citizens. Norton v. State, 307 Ark. 336, 820 S.W.2d 272 (1991). Only when it is established that the private-individual acted at the direction of a law enforcement agency or officer can he or she be considered an arm of the government. Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990). If a search and seizure is instigated or encouraged by the police, Fourth Amendment constraints are applicable, \u201cas the construction to be attached to the Fourth Amendment does not permit of evasion by circuitous means.\u201d Smith v. State, 267 Ark. 1138, 1140, 594 S.W.2d 255, 256 (Ark. App. 1980) (citing People v. Evans, 49 Cal. Rep. 501 (1966)).\nIn support of his argument, appellant attempts to distinguish his case from Collins v. State, 9 Ark. App. 23, 658 S.W.2d 881 (1983) rev\u2019d on other grounds, Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983). In that case, an informant told a deputy sheriff that he knew appellants had possessed marijuana plants; however, too much time had passed between the time the informant learned of this information and when he told the deputy. The informant was told that the sheriffs office could not act on the information unless the marijuana plants were still in appellants\u2019 possession. The informant returned approximately one week later and told the deputy that the plants were still in appellants\u2019 house. Based on this information, a search warrant was obtained, and appellants were convicted of the manufacture of controlled substances. This court affirmed the denial of appellants\u2019 motion to suppress, holding that the informant was acting as a private citizen and not an agent of the State when he observed the marijuana plants for the second time.\nAppellant contends that his case is distinguishable from Collins because while the officer in Collins did not give any instructions to the informant, in his case, Officer Kelley \u201cinstructed\u201d Lehman to make amends with him so she could witness his drug dealing. We do not find this argument persuasive.\nWe believe that the facts of the instant case are more analogous to Smith v. State, 267 Ark. 1138, 594 S.W.2d 255 (Ark. App. 1980). In that case, a grocery store was broken into, and a deputy gave the store owner names of several possible suspects, including the name of appellant. The owner was \u201cinstructed to call the sheriffs office if he discovered any leads or heard anything.\u201d The owner undertook his own investigation, setting up surveillance of appellant\u2019s trailer, and he caught appellant moving items t\u00e1ken from the grocery store out of his trailer and placing them in a car parked in his driveway. In rejecting appellant\u2019s argument that the search was instigated at the suggestion of the deputy, this court noted that the deputy did not accompany the store owner in the surveillance of appellant\u2019s trailer and was not involved in any of the activities at the trader; rather, the totality of the deputy\u2019s roie in the events was \u201cto instruct Mason [the store owner] to get back in touch with him if he had any leads or heard anything.\u201d\nIn the present case, although Officer Kelley used the word \u201cinstructed,\u201d he did not provide Lehman with instructions about how to gather any information about appellant\u2019s drug activities, he did not tell her to search appellant\u2019s house, nor was he present when Lehman obtained the information used in the affidavit for the search warrant. Merely because the word \u201cinstructed\u201d was used in the search warrant did not make Lehman an agent of the government. Based upon the totality of the circumstances, we cannot say that the trial court\u2019s denial of appellant\u2019s motion to suppress was clearly against the preponderance of the evidence.\nAffirmed.\nJennings and Neal, JJ., agree.", "type": "majority", "author": "JOHN F. STROUD, Jr., Chief Judge." } ], "attorneys": [ "Robert S. Blatt, for appellant.", "Mark Pryor, Att\u2019y Gen., by: Jeffrey A, Weber, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Jerry MORROW v. STATE of Arkansas\nCA CR 00-759\n41 S.W.3d 819\nCourt of Appeals of Arkansas Division III\nOpinion delivered March 7, 2001\nRobert S. Blatt, for appellant.\nMark Pryor, Att\u2019y Gen., by: Jeffrey A, Weber, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0032-01", "first_page_order": 58, "last_page_order": 62 }