{ "id": 298570, "name": "Billy Edward WELCH v. STATE of Arkansas", "name_abbreviation": "Welch v. State", "decision_date": "1997-10-09", "docket_number": "CR 97-378", "first_page": "158", "last_page": "170", "citations": [ { "type": "official", "cite": "330 Ark. 158" }, { "type": "parallel", "cite": "955 S.W.2d 181" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "319 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453657 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0313-01" ] }, { "cite": "292 Ark. 237", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871470 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0237-01" ] }, { "cite": "309 Ark. 336", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906100 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0336-01" ] }, { "cite": "303 Ark. 595", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882736 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0595-01" ] }, { "cite": "428 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177992 ], "year": 1976, "pin_cites": [ { "parenthetical": "plurality opinion" } ], "opinion_index": 0, "case_paths": [ "/us/428/0364-01" ] }, { "cite": "462 U.S. 640", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6192095 ], "year": 1983, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/us/462/0640-01" ] }, { "cite": "38 Ark. App. 159", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139428 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0159-01" ] }, { "cite": "503 U.S. 949", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6371041, 6369892, 6368452, 6369542, 6369735, 6368703, 6370858, 6369131, 6370060, 6370669, 6369358, 6368269, 6368881, 6370456, 6370237, 6368127 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/503/0949-16", "/us/503/0949-10", "/us/503/0949-03", "/us/503/0949-08", "/us/503/0949-09", "/us/503/0949-04", "/us/503/0949-15", "/us/503/0949-06", "/us/503/0949-11", "/us/503/0949-14", "/us/503/0949-07", "/us/503/0949-02", "/us/503/0949-05", "/us/503/0949-13", "/us/503/0949-12", "/us/503/0949-01" ] }, { "cite": "947 F.2d 1268", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10526366 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/f2d/947/1268-01" ] }, { "cite": "9 F.3d 43", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10505538 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/f3d/9/0043-01" ] }, { "cite": "484 U.S. 872", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 602137, 600163, 601595 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0872-02", "/us/484/0872-03", "/us/484/0872-01" ] }, { "cite": "290 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873775 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0503-01" ] }, { "cite": "479 U.S. 367", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6216740 ], "weight": 8, "year": 1987, "pin_cites": [ { "page": "374" }, { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/us/479/0367-01" ] }, { "cite": "327 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "year": 1997, "opinion_index": 0 }, { "cite": "327 Ark. 567", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922688 ], "weight": 5, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0567-01" ] }, { "cite": "326 Ark. 813", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12024989 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0813-01" ] }, { "cite": "327 Ark. 105", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922675 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0105-01" ] }, { "cite": "323 Ark. 655", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445777 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0655-01" ] }, { "cite": "916 S.W.2d 732", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1445705, 1445770 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0671-01", "/ark/323/0616-01" ] }, { "cite": "323 Ark. 671", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1445705 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/323/0671-01" ] } ], "analysis": { "cardinality": 880, "char_count": 18151, "ocr_confidence": 0.724, "pagerank": { "raw": 3.7827092671744975e-07, "percentile": 0.8966294946153232 }, "sha256": "85b13be3dd7f86be9c6aa90542d3ceb4d367f523703ec44524580344a2b14be6", "simhash": "1:17aa817f318a6184", "word_count": 3072 }, "last_updated": "2023-07-14T16:33:54.141445+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Billy Edward WELCH v. STATE of Arkansas" ], "opinions": [ { "text": "Robert L. Brown, Justice.\nAppellant Billy Edward Welch was convicted of possession of a controlled substance with intent to deliver, felon in possession of a firearm, simultaneous possession of a controlled substance and a firearm, and possession of drug paraphernalia. He was sentenced as a habitual offender to two terms of life in prison for the possession-with-intent charge and the simultaneous possession charge, six years for being a felon in possession of a firearm, and ten years for the drug paraphernalia. All of Welch\u2019s convictions arise out of a traffic stop and the subsequent impoundment and search of his vehicle. On appeal, he raises the issues of sufficiency of the evidence, speedy trial, and suppression of the evidence seized from his vehicle. We affirm.\nOn the evening ofjuly 28, 1995, the Dallas County Sheriffs Department conducted a safety inspection at the intersection of State Highways 8 and 9 in Dallas County. Deputy sheriffs stopped all vehicles and checked the drivers\u2019 licenses and other documentation relating to ownership of the vehicle and insurance. Welch came upon the deputies while driving his Chevrolet El Camino with a friend. He was approached by Deputy Bill Still, an Auxiliary Deputy Sheriff for Dallas County.\nDeputy Still later testified that Welch was unable to provide a legible driver\u2019s license, proof of insurance, or proof of ownership of the vehicle. Deputy Still reported this situation to his supervisor on the scene, Deputy Sheriff Kenneth Seale. The deputies then checked Welch\u2019s license plate and found that it was registered to another vehicle. Both deputies also testified at the suppression hearing that the initial computer report on Welch indicated that there was a warrant out for his arrest for failure to appear in court in a different county.\nWelch was asked if he had any weapons, drugs, or alcohol in his vehicle. According to the deputies, he initially denied having any drugs or weapons. Later, however, he surrendered a nine millimeter handgun from behind the seat of his El Camino. The deputies then asked if they could search the vehicle, whereupon Welch became angry and refused to allow them to do a search and insisted that he be allowed to go home. Welch was then arrested for the traffic violations, and his car was impounded.\nBefore impounding the vehicle, the deputies took an inventory of its contents. At trial, the law enforcement officers, including Auxiliary Deputy Still, Deputy Seale, and Arkansas Game and Fish Wildlife Officer Mike Knoedl, testified about their involvement in the search. Officer Knoedl testified that he occasionally assisted the Dallas County Sheriffs Department in investigations. On this occasion, Deputy Seale asked Officer Knoedl to assist in the search of Welch\u2019s vehicle because the El Camino was extremely cluttered. Deputies Still and Seale testified that other law enforcement officers brought them items from the car, and they recorded on a log sheet everything that was found in the vehicle and where it was found. Both of the deputies testified that the purpose of the search was to keep Welch from later claiming that something was missing from his vehicle. Deputy Still also stated that he was searching the vehicle to determine if there were more guns.\nWhile conducting the inventory search, the law enforcement officers found several syringes, a bag containing more than thirty-three grams of methamphetamine, a set of scales, and several spoons. Most of these items were found in an ammunition box that was located in the bed of the El Camino. The officers also found Welch\u2019s proof of insurance and proof of ownership of the vehicle in the ammunition box with the drugs. Prior to trial, Welch moved to have all of the items found in the search suppressed. The motion was denied, and Welch was tried by jury, convicted, and sentenced as set out above.\nI. Sufficiency of the Evidence\nWe first consider Welch\u2019s argument regarding sufficiency of the evidence because the double jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficiency of the evidence. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996).\nAfter the State rested its case, the following exchange took place:\nCOUNSEL FOR DEFENSE: Your Honor, the State has rested and at this point the defense would move for a directed verdict.\nTHE COURT: Is that all you\u2019ve got to say?\nCOUNSEL FOR DEFENSE: Yes, sir, that\u2019s all I\u2019m saying. (The court then gave the State a chance to comment after which the following took place.)\nTHE COURT: The motion for dire&ted verdict is denied.\nCOUNSEL FOR DEFENSE: Your Honor, then the defense would now rest and we renew our motion for a directed verdict and I would like to say that the defense is resting without calling the defendant, or a witness, after discussing that with my client and he is in agreement, is that right, Mr. Welch?\nThe court then denied the renewed motion. At no time did defense counsel state any grounds for his motion, which violates Rule 33.1 of the Arkansas Rules of Criminal Procedure. See also Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). Thus, the trial judge had no opportunity to rule on specific grounds with respect to any of the charges. We hold that Welch is procedurally barred from raising this issue on appeal.\nII. Suppression of the Evidence\nWelch\u2019s next point concerns the items seized by the Dallas County Sheriffs Department while conducting a warrant-less search prior to impoundment of his vehicle. When reviewing the denial of a suppression motion, this court makes an independent examination of the evidence based on the totality of the circumstances, and we will not reverse the trial judge\u2019s decision unless it is clearly against the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), reh\u2019g denied, 327 Ark. 576-A, 940 S.W.2d 440 (1997).\nWe initially examine the general law relating to inventory searches. Inventory or administrative searches are excepted from the requirement of probable cause and a search warrant. Florida v. Wells, 495, U.S. 1 (1990). The purpose of an inventory search is to protect the property, the police, and the public. Id. The rationale is that police officers can better account for the property if they have an accurate record of what is contained in a vehicle when it is impounded. Moreover, the police and the public are protected by ensuring that the vehicle does not contain explosives or other harmful items. As part of an inventory search, the police are permitted not only to search the vehicle, but also the containers within the vehicle. Id. Colorado v. Bertine, 479 U.S. 367 (1987); Snell v. State, 290 Ark. 503, 721 S.W.2d. 628 (1986), cert. denied, 484 U.S. 872 (1987).\nIn order for a search of a properly detained vehicle to fall within the inventory search exception to the search warrant requirement, there must be standard operating procedures established by the law enforcement agency conducting the search. Florida v. Wells, supra; Colorado v. Bertine, supra; Snell v. State, supra. The procedures must be followed and the inventory search must not be conducted solely for investigative purposes. Id. There is no requirement that the procedures for the inventory search be in writing. United States v. Lowe, 9 F.3d 43 (8th Cir. 1993). See also United States v. Skillern, 947 F.2d 1268 (5th Cir. 1991), cert. denied, 503 U.S. 949 (1992); Snell v. State, supra.\nAbsent a showing that the true intent of the police officers was to conduct an evidentiary search, the testimony of police officers that they always take inventory of impounded vehicles and that they always search containers is sufficient. Id. The fact that police officers have some idea or expectation of what they might find does not invalidate the purpose of the search. Indeed, the police are not required to weigh the individual\u2019s privacy interest against the probability of finding hazardous materials before opening a container in the vehicle. Colorado v. Bertine, 479 U.S. at 374.\na. Standard Procedures\nTurning to the case at hand, Welch argues that the Dallas County Sheriffs Department did not follow normal procedures for an inventory search because the Department did not have written procedures and the deputy sheriffs could not be specific as to what the procedures were. In Snell v. State, supra, this court relied on the testimony of law enforcement officers to prove the inventory search, which included opening a container, was standard procedure. Accordingly, we turn to the testimony of the law enforcement officers to determine whether standard operating procedures were in place. Deputy Sheriff Seale testified that he always searches vehicles that are impounded:\nQ. \u2014 as far as the Dallas County Sheriffs Department is concerned what does inventory mean?\nA. Well, it\u2019s part of our policy, as far as I know, that in case, you know, if we impound a vehicle we got everything listed and documented then the subject can\u2019t come back later on and say that such-and-such is missing \u2014\nQ. Okay. Do you \u2014 Mr. Seale, have you participated in other inventory searches?\nA. I have.\nQ. Yes, sir. Is this the \u2014 the way y\u2019all did this any different than your normal procedure?\nA. No.\nQ. Now, what were you looking for when you were searching the vehicle?\nA. Weren\u2019t looking for any certain thing, we was just documenting each and every item that was in the vehicle before we impounded it.\nIn addition, Game and Fish Officer Knoedl testified at trial:\nQ. And is that your standard procedure to open a box like that?\nA. Yes, sir.\nQ. Who told you to do that, Mike?\nA. Well, basically I work under the same procedure that the Game and Fish follows, which we have a written policy that says, \u201cAll containers locked, or unlocked, will be searched,\u201d you know, \u201cor inventoried when a vehicle is stored.\u201d\nQ. Okay. Does the Dallas County Sheriff\u2019s Office have a written policy like that?\nA. Sir, I couldn\u2019t say for sure. I know that there is supposed to be a verbal policy. I know from being here seven years and working with the Dallas County Sheriff s Department, that that\u2019s normal operating procedure that is done.\nThe trial court cited the Eighth Circuit\u2019s decision in United States v. Lowe, supra, for the proposition that standard procedures do not have to be in writing and made the following findings in its order:\nThe Courts have ruled that an inventory search must be based upon standardized procedures to prevent rummaging. The officers testified at the hearing that upon impounding the vehicle it would be taken to the Sheriff s Office so that a written inventory of the contents of the vehicle could be made in accordance with their policy. They acknowledged that they had not seen a written policy but do this all the time.\nThe Courts have not required that for inventory searches to be valid they must be based on written standardized procedures or written standard police policy. These procedures may be written, but established unwritten procedures are also sufficient. The officers in this case were following what they had been trained to do when the vehicle was impounded after a valid arrest, perform an inventory for the protection of the owner, the police and the public.\nThese findings are a proper statement of the law and the facts. While we have no doubt that written procedures are preferable to oral procedures, neither our caselaw nor federal caselaw requires that the standard policy be in writing for the inventory search to pass constitutional muster. The essential points appear to be that the practice be uniform and that no discretion be left to the police officers to decide the boundaries of the inventory search. See Colorado v. Bertine, supra.\nWelch makes a specific argument that doing an inventory of the ammunition box was clearly violative of the Fourth Amendment. We disagree. Though Game and Fish Officer Mike Knoedl was not a member of the Sheriffs Department, he testified that he knew the department\u2019s procedures on opening containers, having worked in conjunction with the Department for seven years. Deputy Kenneth Seale further testified that the inventory search, which would include search of the ammunition box, was according to normal procedure. Thus, there was evidence of a standard policy, unlike the case of Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992), where the Court of Appeals concluded there was no evidence of a policy regarding closed containers.\nCertainly, the circumstances surrounding the search were suspicious with no proof of ownership of the vehicle, a warrant outstanding for Welch\u2019s arrest, and a weapon in the vehicle. We are further persuaded by the Supreme Court\u2019s reasoning in Colorado v. Bertine, supra:\nEven if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit.\nBertine, 479 U.S. at 375, quoting Illinois v. Lafayette, 462 U.S. 640, 648 (1983). There was no abuse of discretion by the trial court in refusing to suppress this evidence.\nb. Pretextual Search\nOther than the testimony of Deputy Still that he was also looking for guns, there was no evidence that the search was anything other than an inventory search. Deputy Still and Deputy Seale both testified that they were doing an inventory search. The United States Supreme Court has observed that the fact that a police officer is also aware that he might come upon pertinent evidence in the course of an inventory search is not fatal to that search. Colorado v. Bertine, supra.\nTo suppress an inventory search, a defendant must show that the police officers were conducting the inventory search in bad faith for the sole purpose of collecting evidence. Id. See also South Dakota v. Opperman, 428 U.S. 364 (1976) (plurality opinion). Here, the trial court did not find that there was an ulterior motive on the part of the Dallas County Sheriffs Department. We decline to superimpose our view of the testimony over that of the trial court\u2019s when the law enforcement officers are following standard procedure and in the absence of proof that the sole motivation for the search was to collect evidence. See Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990).\nIII. Speedy Trial\nWelch next claims that the trial court erred because it did not dismiss the charges against him after the time for speedy trial had expired. The State answers that Welch waived his right to a speedy trial because he failed to raise the issue in the trial court.\nWelch was arrested on July 28, 1995. The defense requested and was granted a motion for a continuance on August 19, 1996. The attorney requesting the continuance explained that he would not be ready for trial on that day because Welch failed to attend any of their scheduled meetings and he had not met with the defendant until August 13, 1996. The continuance was granted and time was charged to the defendant. The defense later made a motion to suppress and a hearing was held on November 25, 1996. At the end of the hearing, the court, the prosecutor, and defense counsel attempted to set a trial date, and the foEowing exchange took place:\nTHE COURT: Is there reaEy a speedy trial problem? If I remember correctly I think Mr. Welch walked out of this courtroom and left and we were trying to resolve this matter and he was gone a good long time, was he not?\nPROSECUTOR: Yes, sir. I would ask, so as to avoid any further problem, I\u2019d ask that we go ahead and try this case this year, depending, of course, on what the Court rules. If the Court rules \u2014\nTHE COURT: WeH, I\u2019m not going to do anything unt\u00f1 I rule on this [suppression] motion \u2014\nPROSECUTOR: Yes, sir.\nTHE COURT: \u2014 and if you get me that in a week then I will set it and right now I told you I would set it preferably on the 12, that day\u2019s open \u2014\nPROSECUTOR: Yes, sir.\nTHE COURT: \u2014 do either of you have any problem with the 12 th?\nDEFENSE COUNSEL: No, sir, that\u2019d just give me time to drive back from St. Louis and rest a day before I try a jury trial.\nThis is the only time that speedy trial was discussed at the trial court level before the current appeal.\nIn criminal cases, even constitutional issues must be presented to the trial court to preserve them for appeal. Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992). A defendant\u2019s faEure to move for a dismissal of charges for a lack of speedy trial constitutes a waiver of his rights under the rules. Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987). The defense had plenty of opportunity to object to the trial date, but instead consented to it even after the trial court referred to a potential speedy-trial problem. The trial court is not required to make the motion for him. This issue has no merit.\nIV. Cumulative Error\nFor his final point, Welch contends that all of the rulings against him, when considered together, constitute reversible error. In response, the State correctly points out that the cumulative-error argument was not raised to the trial court. This court has specifically held that not only must each of the negative rulings be objected to individually, a defendant must also raise the cumulative-error objection to the trial court and obtain a ruling in order to argue the point on appeal. Witherspoon v. State, 319 Ark. 313, 891 S.W.2d. 371 (1995). Because Welch did not raise the cumulative-error objection in the trial court, he is barred from raising it on appeal. Id.\nThe individual objections by Welch and the record on appeal have been reviewed for prejudicial error in accordance with Supreme Court. Rule 4-3 (h), and none has been found.\nAffirmed.", "type": "majority", "author": "Robert L. Brown, Justice." } ], "attorneys": [ "Norman Mark Klappenbach, for appellant.", "Winston Bryant, Att\u2019y Gen., by: C. Joseph Cordi, Jr., Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Billy Edward WELCH v. STATE of Arkansas\nCR 97-378\n955 S.W.2d 181\nSupreme Court of Arkansas\nOpinion delivered October 9, 1997\nNorman Mark Klappenbach, for appellant.\nWinston Bryant, Att\u2019y Gen., by: C. Joseph Cordi, Jr., Asst. Att\u2019y Gen., for appellee." }, "file_name": "0158-01", "first_page_order": 186, "last_page_order": 198 }