{ "id": 6142234, "name": "Chancey Lynn BAIRD v. STATE of Arkansas", "name_abbreviation": "Baird v. State", "decision_date": "2003-11-12", "docket_number": "CA CR 02-757", "first_page": "392", "last_page": "411", "citations": [ { "type": "official", "cite": "83 Ark. App. 392" }, { "type": "parallel", "cite": "128 S.W.3d 459" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "327 Ark. 753", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922610 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0753-01" ] }, { "cite": "337 Ark. 477", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240935 ], "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "finding that even the erroneous admission of evidence is not prejudicial and is harmless error where there is overwhelming evidence supporting the conviction" }, { "parenthetical": "finding that even the erroneous admission of evidence is not prejudicial and is harmless error where there is overwhelming evidence supporting the conviction" } ], "opinion_index": 0, "case_paths": [ "/ark/337/0477-01" ] }, { "cite": "260 Ark. 148", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616732 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0148-01" ] }, { "cite": "326 Ark. 210", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12021600 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0210-01" ] }, { "cite": "82 Ark. App. 474", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142611 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0474-01" ] }, { "cite": "42 U.S. 590", "category": "reporters:federal", "reporter": "U.S.", "year": 1975, "opinion_index": 0 }, { "cite": "233 F. Supp. 2d 1326", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11384557 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "1331" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/233/1326-01" ] }, { "cite": "347 Ark. 788", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683367 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/347/0788-01" ] }, { "cite": "371 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450611 ], "year": 1963, "pin_cites": [ { "parenthetical": "providing that evidence obtained by the exploitation of a primary illegality must be excluded" } ], "opinion_index": 0, "case_paths": [ "/us/371/0471-01" ] }, { "cite": "74 Ark. App. 366", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141731 ], "weight": 2, "year": 2001, "opinion_index": 0, "case_paths": [ "/ark-app/74/0366-01" ] }, { "cite": "77 Ark. App. 54", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136475 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/77/0054-01" ] }, { "cite": "349 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513758 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/349/0147-01" ] }, { "cite": "742 S.W.2d 895", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1895752 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0264-01" ] }, { "cite": "295 Ark. 264", "category": "reporters:state", "reporter": "Ark.", "year": 1988, "opinion_index": 0 }, { "cite": "330 Ark. 8", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298586 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0008-01" ] }, { "cite": "533 U.S. 27", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9312742 ], "year": 2001, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/us/533/0027-01" ] }, { "cite": "347 Ark. 530", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683428 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "537", "parenthetical": "quoting Payton, 455 U.S. at 585-86, 589-90" }, { "page": "863-864", "parenthetical": "quoting Payton, 455 U.S. at 585-86, 589-90" } ], "opinion_index": 0, "case_paths": [ "/ark/347/0530-01" ] }, { "cite": "993 S.W.2d 918", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 243561, 243503 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0395-01", "/ark/338/0397-01" ] }, { "cite": "338 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243503 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0397-01" ] }, { "cite": "445 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777746 ], "weight": 4, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/445/0573-01" ] }, { "cite": "351 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158954 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/351/0406-01" ] }, { "cite": "353 Ark. 618", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155525 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "631", "parenthetical": "citing Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003)" }, { "page": "279", "parenthetical": "citing Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003)" } ], "opinion_index": 0, "case_paths": [ "/ark/353/0618-01" ] }, { "cite": "74 Ark. App. 66", "category": "reporters:state", "reporter": "Ark. App.", "year": 2001, "opinion_index": 1 }, { "cite": "263 Ark. 554", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672691 ], "weight": 2, "year": 1978, "opinion_index": 1, "case_paths": [ "/ark/263/0554-01" ] }, { "cite": "284 Ark. 215", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878688 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark/284/0215-01" ] }, { "cite": "309 Ark 211", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906054 ], "weight": 4, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark/309/0211-01" ] }, { "cite": "318 F.2d 205", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 161936, 3648963 ], "pin_cites": [ { "page": "212" } ], "opinion_index": 1, "case_paths": [ "/f2d/318/0205-01" ] }, { "cite": "115 U.S. App. D.C. 234", "category": "reporters:state", "reporter": "U.S. App. D.C.", "case_ids": [ 3648963 ], "pin_cites": [ { "page": "241" } ], "opinion_index": 1, "case_paths": [] }, { "cite": "437 U.S. 385", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180644 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "393" }, { "page": "392-93", "parenthetical": "footnotes omitted, emphasis added" } ], "opinion_index": 1, "case_paths": [ "/us/437/0385-01" ] }, { "cite": "466 U.S. 740", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205546 ], "year": 1984, "pin_cites": [ { "page": "753" } ], "opinion_index": 1, "case_paths": [ "/us/466/0740-01" ] }, { "cite": "536 U.S. 635", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1254544 ], "year": 2002, "pin_cites": [ { "page": "638", "parenthetical": "citing Payton v. New York, 445 U.S. 573 (1980)" } ], "opinion_index": 1, "case_paths": [ "/us/536/0635-01" ] }, { "cite": "327 Ark. 753", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922610 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "767-78" }, { "page": "867-68" } ], "opinion_index": 1, "case_paths": [ "/ark/327/0753-01" ] }, { "cite": "74 Ark. App. 366", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141731 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/ark-app/74/0366-01" ] }, { "cite": "742 S.W.2d 895", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1895752 ], "weight": 4, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/294/0264-01" ] }, { "cite": "445 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777746 ], "weight": 2, "year": 1980, "opinion_index": 1, "case_paths": [ "/us/445/0573-01" ] }, { "cite": "351 Ark. 406", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1158954 ], "weight": 3, "year": 2003, "opinion_index": 1, "case_paths": [ "/ark/351/0406-01" ] } ], "analysis": { "cardinality": 1340, "char_count": 36445, "ocr_confidence": 0.73, "pagerank": { "raw": 6.497341544922815e-08, "percentile": 0.3997935786989898 }, "sha256": "25d2d0384c1a312a9bd7dcdddcb23d3cde8df2728e25e134ff7aa07849164c31", "simhash": "1:e16d3a1e63c7a0dc", "word_count": 5957 }, "last_updated": "2023-07-14T15:50:20.130178+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stroud, C.J., and Robbins, Griffen, and Neal, JJ., agree.", "Bird,J., dissents." ], "parties": [ "Chancey Lynn BAIRD v. STATE of Arkansas" ], "opinions": [ { "text": "D. Vaught, Judge.\nThis is an appeal from the Washington County Circuit Court in which appellant Chancey Baird was convicted of attempted first-degree murder and sentenced to thirty years\u2019 imprisonment in the Arkansas Department of Correction and to a fine of $15,000. On appeal, appellant argues that the trial court erred by denying his motions to suppress the physical evidence recovered from the residence and the statements he gave to police following his arrest. We reverse and remand for a new trial.\nOn February 7, 2001, at approximately 5:30 a.m., Officer Jason Hiatt of the Elm Springs Police Department received a call requesting that he go to the hospital in Springdale regarding an assault on Jessica Gamblin. While at the hospital, Officer Hiatt heard Ms. Gamblin say the name \u201cChancey\u201d in reference to the person who had assaulted her. He assumed she was referring to appellant Chancey Baird. Officer Hiatt also talked with two other police officers at the hospital who confirmed that she had identified appellant as her attacker.\nOfficer Hiatt then contacted Chief Kenneth Martin of the Elm Springs Police Department, who came to the hospital. Upon reviewing the comments made by Ms. Gamblin, Chief Martin agreed that she was referring to appellant as her attacker. Chief Martin, Officer Hiatt, Deputy McAffe of the Washington County Sheriffs Department, and two other officers then proceeded to appellant\u2019s mobile home, allegedly to arrest him, to check for other victims, and to secure the scene. They arrived approximately one hour subsequent to Officer Hiatt\u2019s original notification of the attack.\nUpon arriving, Chief Martin, Officer Hiatt, and Deputy McAffe went to the front door. Officer Hiatt and Chief Martin testified that they both saw what appeared to be blood droplets on the front door facing, and a smear of blood near the door, although they disagreed as to the number of droplets of blood and whether they were wet or dry. Chief Martin stated that the officers did not know how many people had been at the house and were concerned there might be other victims.\nOfficer Hiatt knocked on the front door and yelled \u201cpolice,\u201d but received no response. The officers testified that the lights were on and the television was playing loudly. Chief Martin then knocked harder on the door, and the unlatched door opened slightly. Chief Martin then entered the residence and noticed appellant\u2019s brother, Brent Baird, asleep on the couch. Officer Hiatt and Deputy McAffe followed Chief Martin into the residence. Chief Martin called out Brent Baird\u2019s name, and he sat up to respond. After confirming that Brent was alright, Chief Martin asked Brent where his father, Buddy, was. Brent pointed to a bedroom that was located behind the officers off of the living room. There is no evidence that officers ever asked Brent if anyone at the residence had been injured.\nChief Martin then walked over to the bedroom, pushed the door open, and went in followed by Officer Hiatt and Deputy McAffe. They found Buddy Baird asleep, called out his name, and after receiving no response, awakened him by shaking his foot. Chief Martin noticed what appeared to be a blood stain on Buddy\u2019s shirt, but Buddy then called Chief Martin by name and confirmed that he was also okay. Chief Martin asked Buddy where appellant was, to which he responded that, if appellant was there, he was probably in the back bedroom. Chief Martin then explained to Buddy that Jessica Gamblin had been hurt and that they were looking for appellant. He asked if they could check the residence and garage. Buddy told Chief Martin that he could \u201clook where you want to.\u201d\nThe three officers proceeded down a hallway to appellant\u2019s bedroom. Along the way, they noticed a shirt on the floor that appeared to have blood stains on it. Officer Hiatt and Deputy McAffe, followed by Chief Martin, entered appellant\u2019s bedroom where they found appellant sleeping. They awakened appellant, and then Officer Hiatt placed him under arrest, handcuffed him, took him outside the residence, and placed him in the patrol vehicle.\nChief Martin exited the residence and then went to the garage. Outside of the garage, he saw a large puddle of blood in the gravel, and a \u201cdrag mark\u201d with blood going into the garage. Chief Martin then entered the open door to the garage, where he saw \u201cnumerous clumps of clotted blood\u201d on the floor, as well as on the front of an automobile parked in the garage. He testified that his main purpose for entering the garage was to see if any injured persons were inside.\nOfficer Hiatt then returned to the Elm Springs Police Department to get a consent to search form, which was subsequently signed by Buddy Baird. The form gave officers consent to search the garage, the front of the house, appellant\u2019s bedroom, and the bathroom and hallway in the rear of the residence. After additional investigators arrived to process the crime scene, Chief Martin determined that it would take some time to process everything, so he obtained a search warrant for the residence and garage.\nAfter the warrant was obtained, crime scene investigators collected the evidence seen earlier by Chief Martin in addition to other evidence discovered during their search. Appellant was first questioned by Detective Rexford at the crime scene, and then again later that day he was interviewed on two occasions by law enforcement authorities.\nAppellant filed a motion to suppress both the physical evidence recovered from his residence and the statements he gave to the police following his arrest. The motions were based on the theory that the entry into appellant\u2019s home was warrantless and without exigent circumstances, and therefore illegal. The argument was that, because the entry was illegal, anything that flowed directly from the illegal entry was \u201cfruit of the poisonous tree\u201d and subject to suppression. The trial court denied both the motion to suppress the evidence and the motion to suppress appellant\u2019s statements. Regarding the denial of appellant\u2019s motion to suppress the evidence collected, the trial judge noted that a search warrant was issued, indicating that the officers had probable cause to conduct a search. He also credited Chief Martin\u2019s testimony that he was concerned that other victims might have been at appellant\u2019s residence, particularly after authorities noticed blood on the front door of the house in the course of an investigation of a possible murder. The trial judge found that the officers\u2019 entry into the residence was permissible based on exigent circumstances, and that they obtained Buddy Baird\u2019s consent before proceeding to appellant\u2019s bedroom.\nStandard of Review\nIn reviewing the trial court\u2019s denial of a motion to suppress evidence, we conduct 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 inferences drawn by the trial court. Cummings v. State, 353 Ark. 618, 631, 110 S.W.3d 272, 279 (2003) (citing Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003)).\nA. Exigent Circumstances\nAppellant contends that the trial court erred in denying his motion to suppress all physical evidence that was obtained from his residence, arguing that three officers entered his residence with the intention of arresting him with neither a warrant nor under exigent circumstances. A warrantless entry into a private residence is presumptively unreasonable under the basic principles of the Fourth Amendment. See Payton v. New York, 445 U.S. 573 (1980); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999). The United States Supreme Court wrote in Payton, supra:\n[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.\n* * *\nThe Fourth Amendment protects the individual\u2019s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual\u2019s home \u25a0\u2014 a zone that finds its roots in clear and specific constitutional terms: \u201cThe right of the people to be secure in their ... houses ... shall not be violated.\u201d That language unequivocally establishes the proposition that\u201c[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.\u201d [Citation omitted.] In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.\nHolmes v. State, 347 Ark. 530, 537, 65 S.W.3d 860, 863-864 (2002) (quoting Payton, 455 U.S. at 585-86, 589-90). Further, the United States Supreme Court has noted that \u201c[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.\u201d Kyllo v. United States, 533 U.S. 27, 31 (2001). The burden is on the State to prove that the warrantless search was reasonable. Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997). In order to justify a warrantless felony arrest inside a residence, the State must show that both probable cause and exigent circumstances exist. See Payton v. New York, supra; Mitchell v. State 295 Ark. 264, 742 S.W.2d 895 (1988).\nArkansas Rule of Criminal Procedure 14.3 (2003) sets forth the emergency searches/exigent circumstances exception to the warrant requirement, stating:\nAn officer who has reasonable cause to believe that premises or a vehicle contain:\n(a) individuals in imminent danger of death or serious bodily harm; or\n(b) things imminently likely to bum, explode, or otherwise cause death, serious bodily harm, or substantial destruction of property; or\n(c) things subject to seizure which will cause or be used to cause death or serious bodily harm if their seizure is delayed; 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 destmction.\nThe State argues that there were exigent circumstances that night that afforded them an exception to the warrant rule, namely the officers\u2019 concern that other victims might be inside appellant\u2019s residence. Appellant maintains that although Chief Martin testified as to his concern for additional possible victims, the officers failed to inquire about other victims once inside the residence, and left the residence once appellant had been apprehended.\nEven prior to the actual arrival and entry at appellant\u2019s home, there is evidence that the focus of the police was not directed toward other potential victims. The evidence is clear that subsequent to being called to the hospital around 5:30 a.m. to interview Ms. Gamblin, Officer Hiatt discussed the case with other officers present, called Chief Martin, and waited for him to arrive and assess the situation. Appellant points out that neither Officer Hiatt nor the other officers went directly to the Baird residence. They did not dispatch any other officers to the scene and instead waited for Chief Martin to arrive. It appears that it took approximately one hour from the time Officer Hiatt learned of the alleged attack by appellant to the time he and the other officers went to appellant\u2019s residence. Additionally, there is no testimony that Officer Hiatt believed there were other victims.\nThe conflicting testimony presented regarding the scene at appellant\u2019s house also bolsters appellant\u2019s argument that the exigent circumstances exception was not appropriate in this case. All three officers who testified gave differing accounts regarding the bloodstains on the front door frame: (1) Chief Martin testified they were dry; (2) Officer Hiatt testified that he thought they were wet; (3) Detective Rexford did not even notice them. Detective Rexford, the crime-scene investigator who collected the evidence, testified specifically that he noticed dark stains on the porch, but that they were not unusual for that type of residence. He did not testify that the stains were bloodstains, and did not photograph them as evidence of importance to the processing of the scene. At most, the evidence showed that officers noticed a very small amount of blood upon arrival at the front door of appellant\u2019s residence. The officers had just come from the hospital where they had seen first-hand the extent of the victim\u2019s injuries. Even viewing the testimony regarding the blood evidence in the light most favorable to the State, what they saw was consistent with the known attack against the victim and would not necessarily give rise to a reasonable belief that someone else was in imminent danger.\nAdditionally, Chief Martin testified that he was never given any indication that there were other victims in addition to Ms. Gamblin. When asked why he did not procure a warrant before going to appellant\u2019s residence, he testified that he did not need one because he had probable cause based on the victim\u2019s statements at the hospital. Appellant argues that this testimony confirms that Chief Martin already had the idea that he had a right to enter appellant\u2019s residence and arrest him before he arrived on the scene based on probable cause, not because of any belief that an individual was in imminent danger of death or serious bodily injury. He asserts that such reasoning is inconsistent with both Payton, supra, and Mitchell, supra, which require the State to show that both probable cause and exigent circumstances exist in order to justify a warrantless felony arrest inside a residence.\nThe trial judge determines the credibility of witnesses who testify at a suppression hearing, and this court defers to the trial judge\u2019s superior position to determine credibility. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). Additionally, in conducting a clear-error review on factual issues, we defer to the trial court\u2019s resolution of conflicting testimony and its assessment of witnesses\u2019 credibility. Lamb v. State, 77 Ark. App. 54, 70 S.W.3d 397 (2002). However, based upon the totality of the circumstances standard, it was speculative, at best, for the officers to claim exigent circumstances as justification for their entry. This court has held that speculative or potential harm is not sufficient to show imminent harm and is insufficient to justify exigent circumstances. Starks v. State, 74 Ark. App. 366, 49 S.W.3d 122 (2001).\nRule 14.3(a) (2003) of the Arkansas Rules of Criminal Procedure requires an officer to have reasonable cause to believe that premises contain individuals in imminent danger of death or serious bodily harm in order to justify a warrantless entry into a residence. Although Chief Martin testified that he was looking for other possible victims at appellant\u2019s residence, the evidence does not support the conclusion that he had reasonable cause to believe there were individuals in imminent danger of death or serious bodily harm at the residence. The police waited over an hour before proceeding to the residence. They never received information from anyone, including the victim, that there might be other potential victims at appellant\u2019s residence. The amount of blood police officers saw upon their arrival at the residence was small in amount and would not give rise to any indication that an attack, other than the known assault against Ms. Gamblin, had recently occurred at the residence. Even upon entry into the residence, officers failed to ask either Brent or Buddy Baird if there were other potential victims. They simply verified their respective conditions and then inquired as to appellant\u2019s location. Chief Martin\u2019s general statements regarding his concern for other victims are insufficient to establish reasonable cause in light of all the contradictory evidence. We therefore hold that the warrantless entry into the residence cannot be sustained based on exigent circumstances.\nHaving concluded that the initial entry into appellant\u2019s home was unlawful, all evidence obtained which flowed directly from the unlawful entry must be excluded under the \u201cfruit of the poisonous tree\u201d doctrine. See Wong Sun v. United States, 371 U.S. 471 (1963) (providing that evidence obtained by the exploitation of a primary illegality must be excluded).\nB. Consent\nBuddy Baird\u2019s consent to \u201clook where you want to\u201d was given after the officers\u2019 illegal entry into the home, and generally, consent to search obtained after an illegal search has begun is not valid and cannot remove the taint of the illegal search. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). While federal case law recognizes that a search preceded by a Fourth Amendment violation may still be valid if a defendant\u2019s consent to that search was voluntary in fact under the totality of the circumstances, the government bears a heavy burden of showing that the primary taint of that violation was purged, proving a sufficient attenuation or break in the causal connection between the violation and the consent. See United States v. Reyes-Montes, 233 F. Supp. 2d 1326 (D. Kan. 2002). The factors set out in Brown v. Illinois, 42 U.S. 590 (1975)-, have been used in reviewing the totality of the circumstances: (1) the temporal proximity of the illegal entry and consent; (2) any intervening circumstances; (3) the purpose and flagrancy of any official misconduct.\nUnder the facts of the instant case, the consent was obtained from appellant\u2019s father shortly after the officers\u2019 illegal entry. They awakened appellant\u2019s brother, who indicated his father\u2019s location by pointing to a bedroom located off of the living room. They immediately entered appellant\u2019s father\u2019s bedroom and awakened him, asking about appellant\u2019s whereabouts. There were no intervening circumstances to \u201cbreak the causal connection\u201d or eliminate the coercive effects of the unlawful entry. Regarding the purpose and flagrancy of the officers\u2019 misconduct, the officers may have been well-intentioned, but as noted in Reyes-Montes, supra, \u201ca warrantless entry into a house is presumptively unreasonable, and the physical entry of the house is the chief evil against which the Fourth Amendment is directed.\u201d United States v. Reyes-Montes, 233 F. Supp. 2d at 1331.\nIn the present case, the State argues that because Buddy consented to the search of the residence, the search was constitutionally permissible. We cannot agree with this assessment. Buddy did not verbally consent to the search until after the illegal entry had occurred and did not sign the written consent-to-search form until after appellant had been arrested and significant evidence had been found. In Holmes v. State, supra, the supreme court affirmed this court\u2019s reversal of the defendant\u2019s conviction, correctly reciting the \u201cfruit of the poisonous tree\u201d doctrine. Consequently, based on the totality of the circumstances, we conclude that the trial court erred in denying appellant\u2019s motions to suppress the evidence collected at appellant\u2019s residence.\nC. The Search Warrant, Appellant\u2019s Statements, and the Garage\nThe State argues that appellant does not challenge the validity of the search warrant on appeal, and therefore all evidence illegally obtained prior to the issuance of the warrant would have been inevitably discovered by the warrant. We disagree. Appellant challenges the admission of all physical evidence and alleges that everything flowing from the illegal entry is tainted. This includes the warrant because the affidavit for the warrant was based entirely on appellant\u2019s statements, and the warrant must fall if the statements were illegally obtained.\nAppellant asserts that any statement made from a suspect following an unlawful arrest is \u201cfruit of the poisonous tree\u201d and subject to suppression. See Wong Sun v. United States, supra. Based on the facts of this case, specifically that appellant was awakened by the three officers, immediately put in restraints, and taken from his residence to the rear of the patrol car until subsequently interviewed, the statements were not obtained by means sufficiently distinguishable to be purged of the primary taint. He was continuously in custody from the moment he was awakened (approximately 6:30 a.m.) through three sets of officer interviews, which concluded at approximately 10:30 a.m. There were no intervening factors of free will sufficient to remove the taint of the illegal arrest as set forth in Wong Sun, supra. Accordingly, we find that the trial court erred and the appellant\u2019s statements should have been suppressed.\nIt follows that the affidavit for the search warrant must fall because it was based on the tainted statements of appellant. Moreover, while the victim\u2019s statement might have been sufficient to justify a warrant, it was not included in the affidavit and cannot be used as an independent source after the fact. The first prong of the test for inevitable discovery is whether, after excising the tainted material, the affidavit is sufficient to support the issuance of the warrant. Lauderdale v. State, 82 Ark. App. 474, 120 S.W.3d 106 (2003). Obviously, it is not sufficient here where only tainted material was used.\nAdditionally, we disagree with the State\u2019s contention that the evidence seized from the garage is admissible. Although there was blood that might have been visible from outside the garage, by his own testimony, Chief Martin admits that he went out to the garage after appellant had been arrested and removed from the residence. No additional information had been discovered that indicated that there might be additional victims in the garage. The garage was located next to the residence and used as a garage, and was therefore subject to the same expectation of privacy as curtilage. See Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996); State v. Cashion, 260 Ark. 148, 539 S.W.2d 423 (1976). Absent exigent circumstances, valid consent, or a valid warrant, entry into the garage was also prohibited.\nD. Harmless Error\nThe State argues harmless error based on the victim\u2019s identification of appellant and account of the attack. See Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999) (finding that even the erroneous admission of evidence is not prejudicial and is harmless error where there is overwhelming evidence supporting the conviction). While there may be sufficient additional evidence to convict appellant, we cannot say that the admission of all the physical evidence and appellant\u2019s confession, which were obtained as \u201cfruit\u201d of the unlawful entry, search, and arrest, was harmless error.\nReversed and remanded.\nStroud, C.J., and Robbins, Griffen, and Neal, JJ., agree.\nBird,J., dissents.\nAccording to Officer Hiatt\u2019s testimony, the shirt was the only item of evidence found inside the residence.\nThe dissent states that Officer Hiatt testified that they went to the residence \u201con or around 6:00\u201d He actually said \u201cit was after six in the morning, at or around six in the morning\u201d After further questioning by the court Officer Hiatt confirmed that he was there roughly an hour after visiting with the witness at the hospital. Whether it was thirty minutes or an hour, it is undisputed that no officers were immediately dispatched.\nThe dissent\u2019s reliance on Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997), to support the warrantless entry in this case is misplaced. In Humphrey, the court found valid consent by the appellant\u2019s grandmother and analyzed exigency as a secondary issue. Even so, in Humphrey, the officers heard the gunshots, had two victims down, and immediately proceeded to the residence to apprehend the shooter. The supreme court rightfully found exigent circumstances in that situation. Here, the victim identified appellant, and the police (who knew appellant and his family) waited close to an hour while assembling everyone at the hospital and then proceeded to appellant\u2019s residence. There was no indication of anything other than a stabbing by a friend or acquaintance, and no pursuit of a fleeing shooter as in Humphrey.", "type": "majority", "author": "D. Vaught, Judge." }, { "text": "Bird, Judge,\ndissenting. I respectfully dissent from the majority opinion because I believe that the majority has incorrectly applied the law in concluding that the police officers\u2019 entry into the Baird residence was unlawful. Police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home. Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (citing Payton v. New York, 445 U.S. 573 (1980)). An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Welsh v. Wisconsin, 466 U.S. 740, 753 (1984). While conducting legitimate emergency activities, the police may seize any evidence that is in plain view. Mincey v. Arizona, 437 U.S. 385, 393 (1978). The Supreme Court wrote the following explanation of its holding in Mincey:\nWe do 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, supra, 436 U.S., at 509-510, 98 S.Ct., at 1950-1951.\u201cThe need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.\u201d Wayne v. United States, 115 U.S. App. D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.).\n437 U. S. at 392-93 (footnotes omitted, emphasis added).\nIn Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997), Officers Bobby Bozarth and Willie Dinwiddie of the Augusta Police Department heard shots fired, drove to the area where the shots had originated, and discovered the bodies of a murder victim and a wounded survivor. The survivor and another individual identified Humphrey as the perpetrator of the crime, but the officers called Woodruff County Sheriff Jack Caperton and waited for his arrival before going to the nearby house where Humphrey resided with his grandmother. Appellant Humphrey argued, as does the appellant in the present case, that under Payton v. New York, 445 U. S. 573 (1980), officers lacked reasonable cause to arrest and lacked exigent circumstances to justify the warrantless entry into his home. The supreme court rejected this argument on the following basis:\nExigent circumstances are those requiring immediate aid or action, and, while there is no definite list of what constitutes exigent circumstances, several established examples include the risk of removal dr destruction of evidence, danger to the lives of police officers or others, and the hot pursuit of a suspect.\nIn the present case, murder had been committed, clearly a most grave offense. Since the victims were shot and no murder weapon was immediately apparent at the crime scene, the officers had good reason to believe that the suspect was armed and dangerous. Additionally, Bozarth and Dinwiddle testified that they heard gunshots at about 3:35 a.m., and Caperton testified that they arrived at the residence at 4:21 a.m., less than an hour after the shootings. As discussed above, the officers had strong probable cause to believe that Humphrey was the perpetrator. Dinwiddle also knew that Humphrey lived with his grandmother, giving the officers a strong reason to suspect that Humphrey was in the premises being entered. Under these particular facts, we conclude that sufficient exigent circumstances existed to justify a warrantless entry into the home, even if [the suspect\u2019s grandmother] did not consent to the entry.\n327 Ark. 753, 767-78, 940 S.W.2d 860, 867-68 (1997), citing Butler v. State, 309 Ark 211, 829 S.W.2d 412 (1992), and Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984).\nIn the present case, the trial court\u2019s ruling on the suppression issue included the following:\nAs to the arrest, in my judgment, the totality of the circumstances and the undisputed testimony of Chief Martin that he was concerned there were other victims in the home. Whatever was on the doorframe, it appeared to him, a veteran police officer of over twenty-five years, that there was blood at that location and on those objects.The door comes open, it\u2019s not latched, and he sees a person inside who is apparently either dead or asleep. He doesn\u2019t say that but clearly the implication to me is clear that they\u2019re concerned about possible additional victims....\nI understand your issue about the entry into the house but in my view the initial entry into the house by the police officers was clearly the result of the exigent circumstances and permissible in this particular fact situation. Once they were in the house clearly they had the homeowner\u2019s permission to proceed to the bedroom where the Defendant was observed and later arrested. So the motions are denied.\nThe standard of review for a trial court\u2019s action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We give considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts, and we must defer to the superior position of the trial judge to pass upon the credibility of witnesses. Id., citing State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978).\nHere, the majority opinion agrees with appellant that \u201cneither Hiatt nor other officers went directly to the Baird residence.\u201d The majority recites that Officer Hiatt was called to the hospital at 5:30 a.m. but ignores his testimony that after Chief Martin came to the hospital, the two of them and Deputy McAffee went to appellant\u2019s residence and arrived \u201cat or around\u201d' 6:00 a.m.\nChief Martin testified that there were drops of blood on the door facing and \u201ca smear where someone had drug their hand or fingers or something but it was high enough. . . it would have to have been a hand. That\u2019s another reason I was concerned about the people inside.\u201d His further testimony contradicts the majority\u2019s assertion that there was no evidence of officers\u2019 asking Brent if anyone at the residence had been injured:\nI called out to Brent and he sat up. I asked him if he was okay and he said he was. I asked where his dad and Chancey were and he said, \u201cDad is in there,\u201d pointing to the bedroom almost adjoining the front door. Officer Hiatt and Deputy McAffee stepped in the mobile home. I pushed the door open and called to Buddy four or five times. He was lying face down on the bed fully clothed. I got no response. I walked closer and shook his foot. That\u2019s when he rolled over and called me by name. I noticed what I believed was blood on his shirt from a finger or hand. I asked if he was okay and he said he was. I asked him where Chancey was and he said,\u201cIf he\u2019s here he\u2019s in the back bedroom.\u201d\n(Emphasis added.) It is clear that the trial court believed this testimony about blood at the doorway, an unresponsive person inside, and concern for possible victims other than the girlfriend who had been cut up so badly that a hospital doctor had predicted that \u201cshe was probably not going to make it.\u201d\nProbable cause, which is probable cause to believe that an offense has been or is being committed, is closely interrelated to the question of the existence of exigent circumstances. Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988). Exigent circumstances are those requiring immediate aid or action: one established example is danger to the lives of police officers or others. Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). The Fourth Amendment does allow a warrantless entry and search when the police reasonably believe that someone within a residence is in need of immediate aid. Mitchell v. State, supra (citing Mincey v. Arizona, supra).\nHere, the officers had probable cause to arrest appellant, who had been named by the victim as the perpetrator of this serious crime. Within as little as half an hour, they arrived at his residence, with strong reason to believe that he was there. The weapon used in committing this serious crime had not been found, and the officers collectively had seen the victim\u2019s gruesome injuries, blood on the doorframe of the residence, and a person either dead, unconscious, or asleep in the first room beyond the unlatched door. Given these observations, there was reasonable cause for Officer Martin\u2019s belief that there might be other victims, and thus the officers\u2019 entry into appellant\u2019s home came within the exigent-circumstances exception to the warrant requirement of the Fourth Amendment.\nI would affirm the trial court\u2019s denial of the motion to suppress.\nIn Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), a police sergeant investigated a mid-morning, anonymous telephone call that said that a man had been dead all night in a house at 3408 ShortWilma Street in Fort Smith. Finding no such address, the sergeant instead went to nearby 3408 Wilma Street, where he knocked and received no response. He walked around the residence and asked a neighbor whether he had heard anything or seen anyone leaving, but the neighbor had not.\nThe officer turned the knob of the unlocked door and pushed it inward until it was caught by a chain. He saw what appeared to be a body wrapped in a blanket on the floor in front of the couch. He called into the house, and someone yelled \u201cto get the hell out.\u201d Mitchell, who apparently had exited from a back window, was seen leaving and was arrested. The supreme court, addressing whether the officer had probable cause to believe that a felony had been committed when he opened the door of Mitchell\u2019s residence, found that the warrantless entry was a violation of the Fourth Amendment.The supreme court further found that a common sense evaluation of the phone call could only lead to the conclusion that no one was in need of medical attention, and that the State had not proven the existence of exigent circumstances.\nThe majority, citing Starks v. State, 74 Ark. App. 66, 49 S.W.3d 122, (2001), characterizes Chief Davis\u2019s claim of exigent circumstances as \u201cspeculative, at best.\u201d The historical facts of Starks and the present case are quite different.\nOfficers in Starks were called to a shooting at a residence. An individual opened the door, pointed inside, and said, \u201cHe\u2019s in the back.\u201d Officers went in and found Starks, who had been shot, lying in the doorway of a back bedroom. A sergeant securing the scene immediately found a nine-millimeter pistol and several nine-millimeter shell casings. He also found a .40 caliber shell casing and an empty pistol case, and an infant child was found in the residence. After Starks was taken away to get medical attention, the sergeant re-entered the back bedroom to look for the .40 caliber pistol. He found items that led to Starks\u2019s conviction for possession of cocaine.\nThis court found that Starks\u2019s need for medical attention justified the initial entry into his residence; however, we agreed with his argument that the search for the pistol was not justified when the premises were already secure and only police personnel were present. We found that that the circumstances had changed when Starks was taken away by ambulance, when the harm became potential or speculative rather than imminent. We held that the officer\u2019s re-entry into the back bedroom exceeded the scope of his emergency duties, and that his expressed intention to make the premises safe for small children before turning it over to \u201cfamily members\u201d waiting outside did not justify searching the house for a weapon.", "type": "dissent", "author": "Bird, Judge," } ], "attorneys": [ "James Law Firm, by: William O. James and Clay T. Buchanan, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Brad Newman, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Chancey Lynn BAIRD v. STATE of Arkansas\nCA CR 02-757\n128 S.W.3d 459\nCourt of Appeals of Arkansas Divisions I and IV\nOpinion delivered November 12, 2003\nJames Law Firm, by: William O. James and Clay T. Buchanan, for appellant.\nMike Beebe, Att\u2019y Gen., by: Brad Newman, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0392-01", "first_page_order": 428, "last_page_order": 447 }