TN THE CIRCUIT COURT OF PULASKI COLTNTY, ARKANSASFOURTH DIVISION

STATE OF ARKANSAS

VS.

ARRON LEWIS

PLAINTIFF

cP.20t4-3928

DEFENDANT

ORDER

Comes now for consideration the State's Motion to Consider Inventory Search of the

Ford Fusion, and based upon a review of the case file, the pleadings of both parties, the

testimony and evidence presented at the omnibus hearing held November 16, 2015, and all other

matters considered, the Court DOTH FIND:

The Defendant is charged with capital murder, kidnapping, and possession of firearms by

certain persons. A j"ry trial on the first two counts is currently set for January 12,2016.T\e

Court has now disposed of or deferred various Motions filed by the Defendant by its Orders

entered October 6,2015 and December 9,2015. The State filed a Motion on December l l, 2015

in response to the most recent Order. In that Order, the Court found that the Pulaski County

Sheriff s Department's search of the Defendant's vehicle violated the Fourth Amendment and

suppressed the evidence obtained as a result of that search. The State requests that the Court

consider admitting the evidence found in the vehicle pursuant to the "inevitable discovery"

exception to the general rule regarding suppression of illegally obtained evidence.

That exception recognizes that "if the government can prove that the evidence would

have been obtained inevitably and, therefore, would have been admitted regardless of any

overreaching by the police, there is no rational basis to keep that evidence from the jury in order

to ensure the faimess of the trial proceedings." Nix v. Williams, 467 U.S. 431,447 (198a). The

State cites fiuther the proposition that "police offrcers may conduct a warrantless inventory

ELECTRONICALLY FILEDPulaski County Circuit Court

Larry Crane, Circuit/County Clerk

2015-Dec-16 15:00:5660CR-14-3928

C06D04 : 4 Pages

search of a vehicle that is being impounded in order to protect the owner's property while it is in

the custody of the police, to insure against claims of lost, stolen or vandalized property and to

guard the police from danger." @,-.lstate,342 Ark.684, 688 (2000). The Arkansas Rules

of Criminal Procedure provide that "[a] vehicle impounded in consequence of an arrest, or

retained in official custody for other good cause, may be searched at such times and to such

extent as is reasonably necessary for safekeeping of the vehicle and its contents." Ark- R. Crim.

Pro. 12.6(b). The State also recites the PCSO's inventory search policy, which directs the

Sheriffs to remark on items of significant value and itemize damage other than normal wear.

The State's Motion makes various assertions - that "[p]ursuant to PCSO's written policy

regarding towed vehicles, an inventory search of the vehicle was initiated at the crash site[,]" that

"[a] vehicle storage report was filled out at 10:15 a.m. on9l28ll4 describing items that were

found in the passenger compartment of the Ford Fusion at the crash site[,]" and that "[t]he trunk

was not inventoried at the crash site because it was believed the trunk should be opened in a

controlled environment. Therefore the inventory search was suspended until the vehicle was

towed to the PCSO crime scene bay."

These assertions appear only in the State's motion and are supported by none of the

evidence or testimony before the Court. The vehicle storage report relied upon by the State has

not been introduced. Investigator Jordan Ables of the PCSO, when testiffing at the omnibus

hearing, stated that that the vehicle was searched by the investigators with the assistance of

Arkansas Crime Lab technicians pursuant to Judge Gruber's search wa:rant after "[i]t was towed

from the accident scene . . . to our crime scene bay [where it had been] locked and secured." [at

87] He does not mention any inventory search or any intent to complete an inventory search prior

to or subsequent to the illegal search.

a

Ables testified that, pursuant to the search warrant, the investigators found green duct

tape, white rope, nine millimeter shells in a white bag, asoftball bat, a Fuji Camer4 and an IBM

laptop.l [at 83] The investigators also removed the left corner of a passenger seat cover and the

left corner of the actual passenger seat and completed "tape lifts," resulting in "fiber, hair, trash,

foreign object" evidence.2

The State argues that the alleged inventory search that had already begun "would have

been completed at the crime scene bay pursuant to the authority cited by this Court in Benson.

The inventory search was intemrpted by the search pursuant to the flawed search warrant'"

Again, none of this evidence appears anywhere in the record but for the assertions in the State's

Motion. The testimony at omnibus indicated that the vehicle was locked and secured at the

pCSO prior to execution of the illegal warrant. The Court is not convinced that an inventory

search had begun or would have been completed simply because the Rules of Criminal

Procedure and the PCSO's policy would have allowed one'

The burden of proof under the inevitable discovery doctrine lies with the government to

show that the evidence would have inevitably been discovered absent the intervening illegality.

See general/y Nix, supra. Here, the State has not done so. Nix anticipates that the government

.,must bear the risk of error in the determination made necessary by its constitutional violation."3

The Court does not believe, even if it were to accept the State's timeline, that tape lifts and

removal of the passenger seat and seat cover would have been reasonably necessary for the

I The green duct tape does not appear in the itemized list on the warrant retum. State's Ex. 2. The

State i'as previously indicated that it did not intend to use the Fuji Camera and IBM laptop.

Motions io Suppress the laptop and camera were granted by this Court in a previous Order with

no objection from the State.2 Theie was apparently hair and blood evidence discovered from the seat and tape lifts.3 Nix, supra, at 456-457 (U.S. Supreme Court found that the government overcame mere

"speculation" as to what would have been discovered by offering proof to resolve the

uncertainty.) -

,*U."rrry of the vehicle and its contents. Nor does the Court believe that the items now sought

to be introduced would have conceivably been listed in an inventory report as "items of

significant value."

The United States Supreme Court has ruled that "an inventory search must not be a ruse

forageneralrummaginginordertodiscoverincriminatingevidence.',@,

517 U.S. 806 (1996) (citing Florida v. Wells,495 U.S. 1,4 (1990)). Investigator Ables testified

that the vehicle was towed to the PCSO so as to complete the inventory search in a controlled

environment, but once the vehicle had been towed to the PCSO facility where Ables testified that

it was "locked and secured," the governmental interest in protecting the contents of the vehicle

from unauthorized interference was no longer present. See Colorado v. Bertine, 479 U.5.367

The Court's Order stated in clear language that the State would be given the opportunity

to show that the items in question were seized during an inventory search and not during the

search pursuant to the illegal warrant. The State has instead argued that the items illegally

obtained would eventually have been found based on a theoretical inventory search that no

evidence or testimony indicates would have been completed or supported by law. The State's

Motion is therefore denied.

IT IS SO ORDERED.

HERBERT T. WRIGHT, JR. _