noting, as an example of the appropriate use of the inherent recall power, “when a subsequent Supreme Court decision renders a previous appellate court decision demonstrably wrong”
How later courts described this case
- noting, as an example of the appropriate use of the inherent recall power, “when a subsequent Supreme Court decision renders a previous appellate court decision demonstrably wrong”
Written by the judges who cited it.
The opinion
Per Curiam. Appellee Hezile Earl, Jr., seeks the recaE of this court’s mandate issued on November 10, 1998, and bases his motion on the Supreme Court’s recent decision in Knowles v. Iowa, No. 97-7597 (U.S. Sup. Ct. Dec. 8, 1998). There, the Supreme Court held that a search incident to a traffic violation conducted pursuant to Iowa Code Ann. § 805.1 (4) violated the Fourth Amendment. While § 805.1(4) is simEar or equivalent to our Ark. R. Crim. P. 5.5, which was in issue in Earl’s case here, Earl, unlike the defendant in Knowles, did not challenge Rule 5.5’s constitutionality. See State v. Earl, 333 Ark. 489 , 970 S.W.2d 789 (1998). 1 In fact, this court emphasized this point, stating the foEowing:
We are aware the American Bar Association has recommended that Rule 5.5 and similar rules employed in other jurisdictions not be used due to questions pertaining to its constitutional validity. However, Rule 5.5’s constitutionality is not before us.
Id. at 496 , 970 S.W.2d at 793 .
Thus, Earl never timely challenged Rule 5.5’s constitutionality at his hearing below or on appeal, and he did so only after the Knowles case was decided and after our court’s mandate was issued. Earl cites no authority that supports the recall of a mandate in these circumstances, and we are unaware of any. Consequently, we deny Earl’s motion to recall mandate.
Brown, Imber, and Thornton, JJ., dissent. We disagree thoroughly with the dissent’s conclusion that Earl raised the constitutionality of Rule 5.5.