{ "id": 1885459, "name": "Tina WINTERS v. STATE of Arkansas", "name_abbreviation": "Winters v. State", "decision_date": "1990-01-16", "docket_number": "CR 89-156", "first_page": "127", "last_page": "134", "citations": [ { "type": "official", "cite": "301 Ark. 127" }, { "type": "parallel", "cite": "782 S.W.2d 566" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "267 Ark. 50", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1719889 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/267/0050-01" ] }, { "cite": "495 F. Supp. 579", "category": "reporters:federal", "reporter": "F. Supp.", "year": 1980, "opinion_index": 0 }, { "cite": "270 Ark. 331", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709196 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0331-01" ] }, { "cite": "296 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1892780 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/296/0001-01" ] }, { "cite": "291 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872597 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0325-01" ] }, { "cite": "471 S.W.2d 144", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10151970 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/sw2d/471/0144-01" ] }, { "cite": "290 Ark. 170", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873721 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0170-01" ] }, { "cite": "278 Ark. 236", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1748359 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark/278/0236-01" ] }, { "cite": "718 S.W.2d 819", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9984032 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/sw2d/718/0819-01" ] }, { "cite": "432 F. Supp. 270", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5724350 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/f-supp/432/0270-01" ] }, { "cite": "285 Ark. 288", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877625 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0288-01" ] }, { "cite": "294 Ark. 292", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895799 ], "weight": 4, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0292-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 2-40-801", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "771 S.W.2d 16", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1889841, 1888346, 1888363 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0605-01", "/ark/299/0001-01", "/ark/299/0007-01" ] }, { "cite": "299 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888363 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0007-01" ] }, { "cite": "244 Ark. 1150", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8725734 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/244/1150-01" ] }, { "cite": "Ark. Code Ann. \u00a7 2-40-802", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 } ], "analysis": { "cardinality": 671, "char_count": 11193, "ocr_confidence": 0.905, "pagerank": { "raw": 2.013375743622733e-07, "percentile": 0.744508463620852 }, "sha256": "54f4f34f85bea726d3158e720ebc498027f2162c48ee15efb026c6679b199ec6", "simhash": "1:386dae68ace0517a", "word_count": 1859 }, "last_updated": "2023-07-14T21:23:07.951222+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Tina WINTERS v. STATE of Arkansas" ], "opinions": [ { "text": "Steele Hays, Justice.\nThis appeal from a criminal conviction questions whether the trial court correctly denied a motion to suppress evidence, and challenges the constitutionality of the statutes under which the appellant was convicted.\nAppellant, Tina Winters, is the owner of Miss Buckando, a registered quarter horse acquired in 1975. On April 5, 1987, appellant separated from her husband, Gene Winters, and returned to her home in McRae, Arkansas, while Winters remained at his farm in Cabot. Appellant left her horses at Cabot with the understanding that she would remove them as soon as possible.\nOn April 24, 1987, without appellant\u2019s knowledge, Gene Winters took Miss Buckando, along with some of his own horses, to a veterinarian for testing for equine infectious anemia (EIA). See Ark. Code Ann. \u00a7 \u00a7 2-40-801 \u2014 805 (1987). Under our code, if a horse tests positive, it must be branded and quarantined or sold for slaughter. When a voluntary test is given the state requires that a consent form be signed by the owner or the owner\u2019s agent. Winters signed the consent for his horses as well as for appellant\u2019s horse. The test was administered by Dr. Mann, who had previously furnished veterinary services to both parties. After obtaining the consent form from Gene Winters, Dr. Mann drew blood on all the horses and sent the samples to the Arkansas Livestock and Poultry Commission for testing. The test on appellant\u2019s horse was positive. When she was contacted by an ALPC agent about compliance with the state regulations for a \u201creactor\u201d animal, appellant refused to have the horse branded and quarantined.\nUnder Ark. Code Ann. \u00a7 2-40-802 (1987), a failure or refusal to comply with the EIA provisions under the code is a misdemeanor. Appellant was tried in Searcy Municipal Court and found guilty. She appealed to the Circuit Court of White County and moved to suppress evidence of the test results and challenged the constitutionality of the statutes under which she was being charged. The motions were denied and after a trial on the merits, appellant was again found guilty for refusing to brand a reactor horse and fined $750. From that decision, appellant brings this appeal.\nAppellant first argues that the trial court erred in denying appellant\u2019s motion to suppress the EIA test results. Appellant\u2019s argument is based entirely on agency theories, contending that Gene Winters had no authority as her agent to consent to the test.\nThere are inherent flaws in appellant\u2019s argument. First, the exclusionary rule is not applicable to this case because the actions complained of were not taken by the state, but by private individuals. Second, even if we were to reach the consent question, a consent to a Fourth Amendment search is not judged by traditional rules of agency, but by case law developed in criminal law on consent as that law relates to searches.\nFor a search to be implicated under our Criminal Code, the search must constitute an \u201cofficial intrusion.\u201d See A.R.Cr.P. 10.1(a) and Commentary to Article IV. \u201cThe search and seizure clauses are restraints upon the government and its agents, not upon private individuals.\u201d Walker v. State, 244 Ark. 1150, 429 S.W.2d 121 (1968). The general corollary to this proposition is that the exclusionary rule is not intended as a restraint upon the acts of private individuals. Such searches will not implicate the Fourth Amendment unless the search by the private party has been done at the request or direction of the government, or in some way has been a joint endeavor with the government. Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989), citing to 1 LaFave, Criminal Procedure \u00a7 3.1(h) (1984). Where a state official has no connection with a wrongful seizure, there is no basis for exclusion. Id.\nHere the search was undertaken pursuant to a request from appellant\u2019s estranged husband and the blood was drawn by a private veterinarian. There is no contention by appellant that these two private individuals were in any way acting under the government\u2019s direction or in a joint endeavor with state agents. The trial court was correct to deny the motion to suppress.\nSecondly, appellant submits the trial court erred in upholding the constitutionality of EIA regulatory statutes, Ark. Code Ann. \u00a7\u00a7 2-40-801 \u2014 805 (1987). The argument suggests two grounds for a constitutional challenge \u2014 lack of substantive due process and a taking without just compensation under the Fifth Amendment.\nUnder substantive due process, the legislation must be rationally related to achieving a legitimate governmental objective. See, McClelland v. Paris Public Schools, 294 Ark. 292, 742 S.W.2d 907 (1988); McCammon v. Boyer, 285 Ark. 288, 686 S.W.2d 421 (1985). Appellant does not contend the state goal is not a legitimate one, but rather that the regulations are not rationally related to achieving those ends. Specifically appellant points out that of those horses testing positive, 80 to 95 % will never transmit the virus, so that of 25,000 horses tested annually, only 60 to 170 horses would transmit the virus; that there has been no decrease in transmitters since the development of this test for EIA; and that five other states have abandoned this test. We take the argument to be that the methods incorporated in the statutes are so inefficient that there is no rational relationship to the state goal of eradicating or controlling the disease.\nWe responded to a similar argument in McClelland, supra, that the appellant in that case had misconstrued the test when she argued that the regulation was not accomplishing any of its goals. The same is true here. The test is whether there is a conceivable basis for the rule, so that it can be said the action was not arbitrary. \u201cThe Constitution is not violated so long as a law is not premised upon a patently irrational basis. Judicial inquiry does not concern itself with the accuracy of the legislative finding, but only with the question of whether it so lacks any reasonable basis as to be arbitrary.\u201d McClelland, supra, citing from Cook County College Teachers Union v. Taylor, 432 F. Supp. 270 (1977).\nThe burden of establishing this result is on the appellant, McClelland, supra, and here appellant has not made such a showing. Rather, she relies on evidence which, while indicating some inefficiency in the test, nevertheless is premised on the fact that the regulations are related to the state\u2019s goals, and nothing appellant has presented suggests a \u201cpatently irrational basis.\u201d Furthermore, there was other testimony from the same expert cited for appellant\u2019s arguments, which explained away most of appellant\u2019s objections to the program, and provided more than an adequate basis for sustaining the regulations. As stated in Bolling v. Texas Animal Health Commission, 718 S.W.2d 819 (Tex. App. 1986), which considered the constitutionality of brucellosis regulations, \u201cThe mere fact that a certain regulation is not the best possible regulation, or that the regulation can be improved, is not justification to invalidate the regulation.\u201d\nAppellant next argues that under the Fifth Amendment to the United States Constitution and art. 2 \u00a7 22 of the Arkansas Constitution, she cannot be deprived of her property without just compensation. She testified that her horse was worth $1,000 and that because she did not have enough acreage for the required quarantine area (a minimum of forty acres) she would have to have the horse slaughtered for which she would receive about $200. This, she insists, amounts to a taking and should therefore be compensated.\nIt has already been settled in Arkansas that a police power regulation for the health and welfare of the state which requires destruction of contaminated animals is not a taking, if the regulation is an otherwise valid exercise of the police power and if there is some residual value to the owner. Burt v. Arkansas Livestock & Poultry Comm\u2019n, 278 Ark. 236, 644 S.W.2d 587 (1983).\nHere, as already noted, the regulation is a valid exercise of the police power and there has been no total diminution of the value of appellant\u2019s horse, but only a reduction in its value. And while there is no set formula to determine where regulation ends and taking begins, J.W. Black Lumber Co. v. Ark. Dept. of Pollution Control & Ecology, 290 Ark. 170, 717 S.W.2d 807 (1986), when comparing this to similar cases, we conclude the reduction in value does not equate to a taking. See Bolling v. Texas Animal Health Comm\u2019n, supra; Numley v. Texas Animal Health Comm\u2019n, 471 S.W.2d 144 (Tex. Civ. App. 1971). And see also 2 J. Sackman, Nichols on Eminent Domain, \u00a7 6.07 (1985).\nFinally, appellant objects to the trial court\u2019s admission of the state\u2019s test results because there was insufficient authentication of those results. Appellant makes two points under this argument. The first is that the vet testified he drew the blood on April 24, but that the test form he completed for the lab was dated April 25th. Appellant objected to the introduction of the test form bearing the state\u2019s results, because of this discrepancy, but the objection was overruled.\nIn the trial court\u2019s finding of facts it made a finding on this point, noting that the vet had testified that he would regularly complete the document sometime after he drew the blood sample. And this finding is supported by the record. The vet\u2019s records further showed that he had only drawn blood for Mr. Winters in April of 1987 on the 4th, 14th and the 24th.\nThe trial judge determines whether the evidence is admissible and on review, the appellate court will reverse the decision only if there is an abuse of discretion. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987); A.R.E. Rule 104(a). Given the facts in the record, there was more than an adequate basis for the court\u2019s admission of the test results, as the discrepancy in the dates was easily and logically explained.\nThe appellant\u2019s second point essentially contends that at some point the blood samples had been sufficiently separated from any identifying papers or labels on the samples themselves, so that there was insufficient authentication to show that the positive tests results belonged to the horse in question. However, there was no objection on this basis below. Appellant\u2019s objection before the trial court reached only the discrepancy in the dates. Failure to make a specific argument below waives any argument on appeal. A.R.E. Rule 103(a)(1); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988).\nAFFIRMED.\nThe animal must be isolated from other horses a distance of at least 200 yards.\nAlthough there are similarities, there are differences; suffice it to say that a different body of law applies to questions of consent with agency theories and Fourth Amendment searches. See A.R.Cr.P. 11.2; See also, Spears v. State, 270 Ark. 331, 605 S.W.2d 9 (1980); United States v. Butler, 495 F. Supp. 579 (E.D. Ark. 1980); Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979).", "type": "majority", "author": "Steele Hays, Justice." } ], "attorneys": [ "Lesly W. Mattingly, for appellant.", "Steve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Tina WINTERS v. STATE of Arkansas\nCR 89-156\n782 S.W.2d 566\nSupreme Court of Arkansas\nOpinion delivered January 16, 1990\nLesly W. Mattingly, for appellant.\nSteve Clark, Att\u2019y Gen., by: Clint Miller, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0127-01", "first_page_order": 157, "last_page_order": 164 }