Opposition Brief — Arkansas v. Butler

No. 92-335 | OFFiGE OF THE SGeRK

In The

Supreme Court of the United States

October Term, 1992

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STATE OF ARKANSAS,

Petitioner,

vs.

LARRY KENNETH BUTLER,

Respondent.

Petition For Writ Of Certiorari To The

Supreme Court Of Arkansas

,

vv

RESPONDENT’S BRIEF IN OPPOSITION

¢

Don Lioyp Coox II

Attorney at Law

21 West Mountain Street

Suite 301

Fayetteville, Arkansas 72701

(501) 682-3650

Counsel for Respondent

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TABLE OF CONTENTS

| Page

‘ TABLE OF CONTENTS.............0.c0s000000.0-

: TABLE OF AUTHORITIES..............--e.200000: i

STATEMENT OF THE CASE..............-0-00000-

SUMMARY OF ARGUMENTS ............ 2.220000. 2

A i ee 3

This Court should not grant certiorari

because the Fourth Amendment (as applied

through the Fourteenth Amendment) requires

that exigent circumstances be present to justify a

warrantless arrest within a residence. Further

this case is not appropriate for determination of

e whether the Fourth Amendment requires that an

officer have exigent circumstances in addition to

being in hot pursuit of the defendant for the

arrest to be lawful in that: 1.) No offense was

committed in the officer’s presence and; 2.) It is

not clear that any hot pursuit was ever com-

mence or whether if commenced it began in the

respondent’s home after the illegal entry of the

NN 4206 Sashes va ak hae eRN AL eeees ReReRkanA Les 3

EE, Oe wiv eeice ei aceu lines eeeceets uke ess 12

This Court should not grant certiorari

because the exclusionary rule requires the sup-

pression of evidence which had been obtained by

exploitation of the primary illegality, which

occurred as a result of the decision of the arrest-

ing officer to continue, in the respondent’s home,

an encounter from which the respondent had

already peaceably withdrawn, all evidence

sought to be suppressed being during the occur-

oe Perea rere eee 12

ee | ee oO Pre err errr tere ee 20

ii

TABLE OF AUTHORITIES

Page

CASEs:

Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465

1) re) rn Se nee Ro ee 7

Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). . passim

City of Kirksville v. Guffey, 740 S.W.2d 227

(Mo.Ct.App. 1987), cert. denied, 485 U.S. 1035,

108 S.Ct. 1596, 99 L.Ed.2d 910 (1968) .............. 8

City of Seattle v. Altschuler, 53 Wash. App. 317, 766

Pag SiG CIO) ....»..s ss cannon pane n Fees ne 9

Coolidge v. New Hampshire, 403 U.S. 443, 92 S.Ct.

2022, 2D LGA SHG CHB as ine dee es warn wakes 15

Gasset v. State, 490 So. 2d 97 (Fla. App. 1986)........ 7

Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94

LDR SOG CIGGT DT. a0 5 200k vcudeeeee ee eee sans 14

In Re Lavoyne M., 221 Cal. App. 3d 154, 270 Cal.

pte. SPE CON Let. TOD so ike ea cane ee ee een 7

Jeffcoat v. Hinson, 851 F.2d 356 (4th Cir. 1988) ........ 9

Leopard v. State, 542 N.E.2d 1347 (Ind. App. 1989)..... 7

McCall v. People, 623 P.2d 357 (Colo. 1981) ........... 9

McDonald v. United States, 335 U.S. 451 (1948)....13, 14

New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109

L6G 13 GIOSOR. inks i eee 17, 18, 19

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 66

ee Rt, | Peer errrrrryyrrre ye ee 10, 15

lii

TABLE OF AUTHORITIES - Continued

Page

People v. Day, 165 Ill. App. 3d 266, 116 Ill. Dec. 525,

519 N.E.2d 115, rev. denied 121 Ill. 2d 575 122

Ill. Dec. 441, 526 N.E.2d 834 (1988) ................ 9

People v. Hampton, 164 Cal. App. 3d 27, 209 Cal.

Rptr. 905 (1st Dist.), cert. denied, 474 U.S. 825

Se eae eet We bytes & 2 rete 8

People v. Klimek, 101 Ill. App. 3d 1, 56 Ill. Dec. 603

oe ee er ae 9

People v. Strelow, 96 Mich. App. 182, 292 N.W.2d

A hp 55 od Vale and Ga énso-0n be kno ne ns 9

Silverthorne Lumber Co. v. United States, 251 U.S.

385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) ............. 15

State v. Blake, 468 N.E.2d 548 (Ind. App. 1984) ....... 8

State v. Bolte, 115 N.J. 579, 560 A.2d 644, cert.

i A RSE OG) en 9

State v. Griffith, 61 Wash. App. 35, 808 P.2d 1171

a la ee ad 6 a k's Shin sa one & 8, 9

State v. Komoto, 40 Wash. App. 200, 697 P.2d 1025,

cert. denied, 474 US. 1021, 106 S.Ct. 572, 88

eek ee ah kka ss oa 66% 00.0.0. 9

State v. Penas, 200 Neb. 387, 263 N.W.2d 835 (1978) ..... 8

State v. Storvick, 423 N.W.2d 398 (Minn. Ct. App.

UN UEE SRE ett Sin, shia < ed cst caw anniek vores ss 9

State v. Wren, 115 Idaho 618, 768 P.2d 1351 (Idaho

Ne GAG Ch cd ba5NG'rs se Kukwsd Rovere ckens « 9

United States v. Bailey, 691 F.2d 1009, 1017 (11th

Cir. 1982), cert. denied, 461 U.S. 933, 103 S.Ct.

Se a 16, 19

iv

TABLE OF AUTHORITIES - Continued

Page

United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16

Se rr Ce 2 eee et eee a kak ee 18, 19

LiInited States v. Calandra, 414 U.S. 338, 94 S.Ct. 613,

ee Sa ee a a 6 6 bees ao Oe ek ewok 14

United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244,

ey Se ee RN, GG os 6 oo chakawae es 15, 16, 17

United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406,

ee Se ee Se SN a kk. ooh e ca ea wae coun 6, 7

United States v. United States District Court, 407

U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 751 (1972)..... 11

Welsh v. Wisconsin, 466 U.S. 70, 104 S.Ct. 2091, 80

MRR. es UR en ape 4, 8, 9, 11, 12

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.

OU, F L.ED OEE CIGGS) onan 5 oc ences cus 15, 16, 19

STATEMENT OF THE CASE

On October 22, 1989, Larry Kenneth Butler, the

respondent herein, was arrested inside his home and

charged with the offenses of disorderly conduct and

refusal to submit to arrest, both misdemeanors. At trial in

the Municipal Court of Springdale, Arkansas, respondent

was found guilty of refusal to submit to arrest and acquit-

ted of the charge of disorderly conduct. The conviction

was appealed to the Circuit Court of Washington County,

Arkansas. At trial he was convicted of the offense of

refusal to submit to arrest. The sentence was fifteen days

in jail, a fine in the amount of $200.00 and court costs in

the amount of $62.75.

The case was appealed to the Supreme Court of

Arkansas, with the respondent citing three points for

reversal: 1.) that the trial court erred in denying his

motion to suppress all evidence from the time of the

illegal entry into his home; 2.) that the trial court erred in

not holding the Arkansas refusal to submit to arrest stat-

ute unconstitutional in that it was violative of the Fourth

Amendment of the Constitution of the United States; and

3.) that the trial court erred in allowing evidence of

testimony from a municipal court trial into a de novo

circuit court trial and allowed the prosecutor to act as a

witness. The Court found the first argument to be persua-

sive and declined to rule on the other two arguments. The

Court held that there were no exigent circumstances justi-

fying warrantless entry into the respondent’s home and

that all evidence from the time of the illegal entry should

be suppressed.

SUMMARY OF ARGUMENTS

Argument I.

Respondent argues that this Court should not grant

certiorari because the ruling of the Supreme Court of

Arkansas is correct. Respondent argues in essence that

the Fourth Amendment as applied through the Four-

teenth Amendment requires that exigent circumstances

be present to justify a warrantless arrest inside the home

and that the Supreme Court of Arkansas found that those

circumstances were not present. Respondent further

argues that for that reason that this case is inappropriate

for deciding whether an officer must have exigent cir-

cumstances in additicn to hot pursuit to effect a warrant-

less arrest inside a home. The case is inappropriate

because, since the respondent was acquitted of the

offense of disorderly conduct, no misdemeanor offense

was committed in the officer’s presence and the ruling is

not clear as to whether there was a finding that there ever

was any hot pursuit. If the hot pursuit did in fact exist, it

started after the illegal entry into the respondent’s home

and as such was not an exigent circumstance justifying

warrantless entry.

Argument II.

The exclusionary rule requires suppression of evi-

dence in situations where the evidence is gained as a

result of exploitation of an illegal act, in this instance the

warrantless entry of the police into the respondent's

home. The illegal presence of the officer represented a

continuing illegality and all evidence gathered during the

period of the illegality, the entire time the officer was in

a

the home illegally, should be suppressed. An additional

consideration is the fact that the encounter between the

respondent and the officer had effectively ended and the

respondent had returned to his house when the officer

elected to continue the encounter by entering the respon-

dent’s home. This illegal entry constituted the primary

illegality which did not conclude until the officer left the

house and encompassed all events that occurred during

this time as suppressible evidence.

*

ARGUMENT

5

THIS COURT SHOULD NOT GRANT CERTIORARI

BECAUSE THE FOURTH AMENDMENT (AS APPLIED

THROUGH THE FOURTEENTH AMENDMENT)

REQUIRES THAT EXIGENT CIRCUMSTANCES BE

PRESENT TO JUSTIFY A WARRANTLESS ARREST

WITHIN A RESIDENCE. FURTHER THIS CASE IS

NOT APPROPRIATE FOR DETERMINATION OF

WHETHER THE FOURTH AMENDMENT REQUIRES

THAT AN OFFICER HAVE EXIGENT CIRCUM-

STANCES IN ADDITION TO BEING IN HOT PUR-

SUIT OF THE DEFENDANT FOR THE ARREST TO BE

LAWFUL IN THAT: 1.) NO OFFENSE WAS COMMIT-

TED IN THE OFFICER’S PRESENCE AND 2.) IT IS

NOT CLEAR THAT ANY HOT PURSUIT WAS EVER

COMMENCED OR WHETHER IF COMMENCED, IT

BEGAN IN THE DEFENDANT’S HOME AFTER THE

ENTRY OF THE OFFICER.

The Petitioner’s request for certiorari is predicated

on a complicated set of assumptions. First, that the officer

in question was actually in hot pursuit of the respondent.

Second, that said pursuit commenced outside the home of

the respondent. Finally, that the Supreme Court of

Arkansas found hot pursuit of the respondent existed and

that since the Court found the underlying offense to be

minor the hot pursuit exigent circumstance exception did

not apply under the analysis in Welsh v. Wisconsin, 466

U.S. 70, 104 S.Ct. 2901, 80 L.Ed.2d 732 (1984). The facts

and ruling in the case are simply not clear and the unique

circumstances surrounding this matter weigh against it

being useful in determining the circumstance under

which an officer may make a warrantless arrest of a

defendant in his residence. These disparate facts make

the instant case distinguishable from the cases cited by

respondent and rather than dispose of old controversies

would result in myriad and wholly new difficulties.

A review of the pertinent parts of the Arkansas

Supreme Court’s ruling illustrates the respondent’s basis

for argument. As found on page A-1 of the petitioner’s

brief the Court noted:

The underlying facts in this novel situation

show that on October 22, 1989, Butler called the

Springdale Police Department to complain of a

disturbance in his neighborhood. Officer Rusty

Sudduth responded to the call. Apparently, com-

munication between Butler and Officer Sud-

duth, on the front porch of Butler’s home,

deteriorated due to the barking and growling of

Butler’s dog while there were trying to talk. As

a result, Butler asked his wife to call for another

officer and reentered his home; Officer Sudduth

followed and told him that he was under arrest

for disorderly conduct. It is disputed as to when

Officer Sudduth told Butler that he was under

arrest; Butler claims that Officer Sudduth told

him after the officer had entered his home, and

Officer Sudduth claims that he told Butler while

crossing the doorway threshold. It is not dis-

puted that Officer Sudduth did not place Butler

under arrest while they were both on Butler’s

front porch.

The Arkansas Supreme Court stated in its ruling

found at page A-7 of petitioner’s brief:

The State contends that the warrantless

entry into Butler’s home was predicated under

the “hot pursuit” exception to the warrant

requirement. However, even though Officer

Sudduth might have been under the impression

that he was in continuous pursuit of Butler for

what he considered to be the crime of disorderly

conduct, of which Butler was found not guilty,

the crime is a minor offense; since the crime is a

minor offense, under these circumstances there

is no exigent circumstance that would allow

Officer Sudduth’s warrantless entry into But-

ler’s home for what is concededly, at most, a

petty disturbance. There is certainly no exigent

circumstance requiring immediate aid or action;

consequently, the application of the exigent cir-

cumstances exception to the requirement of a

warrant for home entry in this context is, there-

fore, inapplicable, and the police officer’s

actions were unreasonable behavior that the

principles of the Fourth Amendment will not

sanction.

The Arkansas Supreme Court never made an explicit

ruling on whether or not any “hot pursuit” actually exis-

ted. What the Court did say was that even if it did exist,

that since the Court determined the offense to be a minor

one the exigencies were not such that would justify a

warrantless entry into a residence to effect the arrest. The

Court essentially found that no exigencies existed. The

“hot pursuit” in the instant case, if it exists, is distin-

guishable from every case favorably cited by the peti-

tioner, either by the type of pursuit, by the fact that other

exigent circumstances were present, or by the underlying

offense. It is worthy of note that there actually was no

underlying offense in the instant case.

The petitioner cites numerous cases for the proposi-

tion that “courts have addressed the issue of whether a

warrantless arrest of a defendant inside of a residence for

a minor offense may be made on the basis that the officer

was in hot pursuit of the defendant.” Taking the version

of the facts most favorable to the petitioner, the “hot

pursuit” began, if at all, with the respondent well within

his house and the officer crossing the threshold. No

action had been taken before the respondent’s reentry

into his residence and the officer’s subsequent entry. If

“hot pursuit” can begin after a warrantless entry into a

residence, then the facts alone make it distinguishable

from the cases cited.

In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406,

49 L.Ed.2d 300 (1976), this Court upheld a warrantless

entry into the residence of an individual to make a felony

arrest. In that instance the defendant retreated into her

house after the police approached, identified themselves

by displaying their identification and shouting “police.”

Clearly the individual in question understood that she

was being pursued. This Court correctly noted that hot

pursuit need not be “an extended hue and cry in and

about [the] public streets.” And that “a suspect may not

defeat an arrest which has been set in motion in a public

place, . . . by the expedient of escaping to a private

place.” 427 U.S. at 43. In the case at bar, there is no

indication that the respondent was fleeing the officer or

had reason to think that he might be under any obligation

to remain with the officer. Further, respondent was

already in a private place, his residence, and the officer

was either already inside, or at least in the threshold,

when the warrantless arrest was effectuated. The other

cases cited by the petitioner are similarly divergent.

The petitioner first cites three cases to support its

argument: In Re Lavoyne M., 221 Cal. App. 3d 154, 270

Cal. Rptr. 394 (4th Dist. 1990); Leopard v. State, 342 N.E.2d

1347 (Ind.App.1989); Bennett v. Coffman, 178 W.Va. 500,

361 S.E.2d 465 (1987); all with facts substantially different

from the instant case. In Re Lavoyne M., the hot pursuit

was by a police car with lights and siren activated. The

defendant stopped in front of his dwelling and entered,

ignoring orders of police officers to stop. Leopard found

that the defendant, followed for several blocks by a police

officer, was ordered to halt outside his home and then

fled inside. Bennett presented the situation where officers

had received a disturbance call involving the defendant,

had pursued him for several hours, both on the road and

around the defendant’s house. Additionally that Court

found that the exigencies included potential destruction

of evidence as well as hot pursuit. Welsh, supra, was

distinguished in that the state court found that the under-

lying offense was major, the opposite conclusion reached

by the state court in the instant case.

Similarly, Gasset v. State, 490 So.2d 97 (Fla.App. 1986)

involved a high speed chase through a residential district

before the defendant reached and entered his residence.

Additionally, that Court found that the underlying

offense was major. The Court in People v. Hampton, 164

Cal. App. 3d 27, 209 Cal. Rptr. 905 (1st Dist.) cert denied,

474 U.S. 825 (1985) found that under a Welsh analysis, the

underlying offense was not minor in character and fur-

ther amplified their understanding of the “hot pursuit”

exception to the warrant requirement in that case to

apply “where the delay occasioned by obtaining a war-

rant would permit the escape-of one suspected of a grave

offense, who remains ‘dangerous to life and limb.’ ”

The petitioner also cited a trio of cases decided

before Welsh involving divisive facts, State v. Blake, 468

N.Ed.2d 548 (Ind.App. 1984); State v. Neidermeyer, 48 Or.

App. 665, 617 P.2d 911, cert. denied, 450 U.S. 1042, 101

S.Ct. 1761, 68 L.Ed.2d 239 (1981); and State v. Penas, 200

Neb. 387, 263 N.W.2d 835 (1978). Blake involved the high

speed pursuit of a motor vehicle prior to arrival at the

defendants home. In Neidermeyer, the defendant was

ordered to stop outside the residence and proceeded

inside. Additionally, the officers had received reports that

the defendant had been involved in a shooting. Penas

likewise presented a situation where a defendant was

pursued by a police officer who identified himself and

ordered the defendant to stop while he was still well

outside his residence.

State v. Griffith, 61 Wash. App. 35, 808 P.2d 1171

(1991) and City of Kirksville v. Guffey, 740 S.W.2d 227

(Mo.Ct.App. 1987) cert. denied, 485 U.S. 1035, 108 S.Ct.

1596, 99 L.Ed.2d 910 (1988), also cited by the respondent,

present additional cases where the warrantless entry was

found lawful due to exigencies in addition to “hot pur-

suit.” In Guffey, the defendant engaged in a high speed

car chase with law enforcement officers using siren and

lights before he arrived at his residence. The Guffey court

9

further distinguished the case under Welsh by finding

that the underlying offense was not a minor one. The

court in Griffith noted the following circumstances: the

deputy was following the defendant with flashing lights

and siren; defendant was fleeing the deputy; possible

destruct.on of evidence; and defendant was arrested for

more than a minor traffic violation. Additionally the

court found that the deputy never entered the defen-

dant’s house. Another case in this vein is State v. Komoto,

40 Wash. App. 200, 697 P.2d 1025, cert. denied, 474 U.S.

1021, 106 S.Ct. 572, 88 L.Ed.2d 556 (1985), not cited by the

petitioner.

As noted by the petitioner, there have been numerous

examples of situations where state courts have refused to

find sufficient exigent circumstances based on “hot pur-

suit” alone. State v. Wren, 115 Idaho 618, 768 P.2d 1351

(Idaho App. 1989); Jeffcoat v. Hinson, 851 F.2d 346 (4th Cir.

1988); McCall v. People, 623 P.2d 397 (Colo. 1981); People v.

Day, 165 Ill.App.3d 266, 116 Ill.Dec. 525, 519 N.E.2d 115,

rev. denied, 121 [1l.2d 575, 112 Ill.Dec. 441, 526 N.Ed.2d

834 (1988); People v. Klimek, 101 Ill.App. 3d 1, 56 Ill.Dec.

403, 427 N.Ed.2d 598 (1981); People v. Strelow, 96

Mich.App. 182, 292 N.W.2d 517 (1980); State v. Storvick,

423 N.W.2d 398 (Minn.Ct.App. 1988); City of Seattle v.

Altschuler, 53 Wash.App. 317, 766 P.2d 1171 (1991); and

State v. Bolte, 115 N.J. 579, 560 A.2d 644 (1989).

As noted above, the cases cited as favorable by the

petitioner are all distinguishable from the instant case.

An equal, if not greater, number of cases agreed with the

proposition that “hot pursuit” alone is insufficient to

justify a warrantless home arrest. However, all of these

cases involve situations where the issue of hot pursuit

10

was actually ruled upon by the state court. In the instant

situation, there was never a clear ruling that any “hot

pursuit” actually occurred. The Supreme Court of

Arkansas’ ruling makes it clear that their finding was that

even if “hot pursuit” had occurred that the exigencies

involved would have been insufficient to justify the offi-

cer’s warrantless entry into the respondent’s home. This

is a very different thing than that asserted by the peti-

tioner. Similarly, the record does not reflect that the

respondent retreated into his home “as the officer was

attempting to effectuate the arrest.” The record presented

makes it clear that the respondent was already in his

home and the officer was either already inside or within

the threshold area of the respondent’s home when he

tried to effectuate the arrest. As this Court stated in

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 66

L.Ed.2d 639 (1980): “[T]he 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.” Payton, at 1381-1382.

The petitioner also makes the argument that even

though the officer did not have a situation where destruc-

tion of evidence was a likelihood if he did not enter the

home and make the arrest, that “he was warranted in

doing so to prevent any further threat to or disturbance

of public peace.” Since the supposed disturbance, of

which the respondent was later acquitted, consisted of his

disagreement with the officer, it is unclear how the action

of the officer in entering the house and continuing the

disagreement was to “prevent any further threat to or

disturbance of the peace.” It would seem that the sim-

plest course in pursuance of that goal would have been to

11

simply leave and let the respondent call another officer.

The respondent had elected to withdraw from this

encounter peaceably. The officer chose to continue the

encounter by entering the respondent’s home. There was

no threat to the peace except that presented by continu-

ing the encounter.

Finally, petitioner argues that under the analysis in

Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d

732 (1984), that this case should be differentiated in that it

involves an offense that provides for significant penalties,

including jail time. Petitioner cites numerous cases where

other state courts have made decisions under this ana-

lysis based on the finding that the crimes involved were

not minor. In the instant case, the Supreme Court of

Arkansas found that th . aderlying offense, of which the

respondent was acqu' «ed, was a minor offense under

Arkansas law. While the Welsh case has been criticized,

most notably within the Court itself, Justice Rehnquist,

now Chief Justice Rehnquist, noted in his dissent in Welsh

that “[t]he variable factor, if there is one, is the govern-

mental interest that will be served by the warrantless

entry.” Welsh, at 761. It is highly questionable as to what

the governmental interest would have been in the instant

case.

The Supreme Court of the United States should

refuse to grant certiorari in this case for reason that

instant case does not properly delineate the issues

advanced by the petitioner. There is no clear ruling at the

state level whether any “hot pursuit” ever occurred, only

that the exigencies present were not sufficient to justify

warrantless entry into the home of the respondent to

12

effect an arrest for a misdemeanor. As such, it is impossi-

ble to determine whether the state court ruled that addi-

tional exigent circumstances were required, precisely the

issue the petitioner wants determined. The holding of the

Arkansas Supreme Court should be allowed to stand and

certiorari denied.

II.

THIS COURT SHOULD NOT GRANT CERTIORARI

BECAUSE THE EXCLUSIONARY RULE REQUIRES

THE SUPPRESSION OF EVIDENCE WHICH HAS

BEEN OBTAINED BY EXPLOITATION OF THE PRI-

MARY ILLEGALITY, WHICH OCCURRED AS A

RESULT OF THE DECISION OF THE ARRESTING

OFFICER TO CONTINUE, IN THE RESPONDENT'S

HOME, AN ENCOUNTER FROM WHICH THE

RESPONDENT HAD ALREADY PEACEABLY WITH-

DRAWN.

The petitioner correctly notes that the Supreme Court

of Arkansas held that the initial entry of the officer into

the respondent’s home was unlawful. The theory is then

advanced that the appellate court erred in reversing the

trial court’s denial of respondent’s motion to suppress all

evidence obtained after the officer entered respondent's

home. Petitioner feels that “such a sweeping application

of the exclusionary rule is unwarranted.” The circum-

stances of this case dictate otherwise because any evi-

dence gained was as a result of the illegal actions of the

officer when he elected to enter the respondent’s home.

The facts of the case indicate that after respondent

had summoned the police, the respondent and Officer

Sudduth became involved in a discussion that was not

13

proceeding to the satisfaction of either party. Both parties

were on the porch of respondent’s home and the respon-

dent asked his wife to call another police officer. At that

point the respondent peaceably withdrew and reentered

his home. There is no evidence to suggest that he was

under any duty to remain in the officer’s presence. It is

axiomatic in our society that when a dispute is about to

occur, that we expect the parties to simply walk away.

The respondent attempted to peaceably discontinue the

encounter with the police officer. He simply went back

into his home, the one place in our society that is tradi-

tionally free from government interference. It was the

police officer who elected to continue the encounter by

entering the home of the respondent, without a warrant,

to effect an arrest for a misdemeanor for which the evi-

dence was not strong enough to sustain a conviction.

Mr. Justice Jackson’s observation in McDonald uv.

United States, 335 U.S. 451 (1948) noting that warrantless

home entry should be severely restricted when only a

minor offense has been committed seems particularly

appropriate to the facts at bar.

Even if one were to conclude that urgent

circumstances might justify a forced entry with-

out a warrant no such emergency is present in

this case. This method of law enforcement dis-

plays a shocking lack of all sense of proportion.

Whether there is reasonable necessity for a

search without waiting to obtain a warrant cer-

tainly depends somewhat on the gravity of the

offense thought to be in progress as well as the

hazards of the method attempting to reach it. ...

When an officer undertakes to act as his own

magistrate, he ought to be in a position to justify

14

it by pointing to some real, immediate and

serious consequences if he postponed action to

get a warrant.

McDonald, at 450-451.

The facts make it clear that there would have been no

discernible consequences if the officer in question had

taken the time to get a warrant in the instant case. The

failure to do so resulted in the respondent’s byzantine

journey through the court system to defend his Fourth

Amendment rights. The primary purpose of the exclu-

sionary rule is “to deter future unlawful police conduct

and thereby effectuate the guarantee of the Fourth

Amendment against unreasonable searches and sei-

zures.” United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct.

613, 619, 38 L.Ed.2d 561 (1974). See also Illinois v. Krull, 480

U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). That

protection should be paramount in a situation involving

the warrantless entry into a private dwelling place. Illegal

entry into a person’s home is the chief evil guarded

against by the Fourth Amendment. United States v. United

States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32

L.Ed.2d 752 (1972). The purpose of this line of reasoning

has been well articulated by this Court:

[A] principal protection against unnecessary

intrusions into private dwelling is the warrant

requirement of the Fourth Amendment on

agents of the government who seek to enter the

home for purposes of search or arrest... .

[Citations omitted] It is not surprising, there-

fore, that the court has recognized, as “a basic

principle of Fourth Amendment lawlI,]” that

searches and seizures inside a home without a

warrant are presumptively unreasonable.

15

Welsh v. Wisconsin, 466 U.S. 70, 104 S.Ct. 2091, 80 L.Ed.2d

732 (1984). Citing Payton v. New York, 445 U.S. at 586, 100

S.Ct. at 1380. See also Coolidge v. New Hampshire, 403 U.S.

443, 474-475, 92 S.Ct. 2022, 2042-2043, 29 L.Ed.2d 564

(1971).

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct.

407, 9 L.Ed.2d 441 (1963) this Court defined the scope of

the exclusionary rule.

The exclusionary rule has traditionally

barred from trial physical, tangible materials

obtained either during or as a direct result of an

unlawful invasion. It follows from our holding

in Silverman v. United States, 365 U.S. 505, 81

S.Ct. 679, 5 L.Ed. 734, that the Fourth Amend-

ment may protect against the overhearing of

verbal statements as well as against the more

traditional seizure of ‘papers and effects.’ Sim-

ilarly testimony as to matters observed during

an unlawful invasion has been excluded in

order to enforce the basic constitutional policies.

McGinnis v. United States, 1 Cir., 227 F.2d 598.

Thus, verbal evidence which derives so imme-

diately from an unlawful entry and an

unauthorized arrest as the officer’s acting in the

present case is no less the “fruit” of official

illegality than the more common tangible fruits

of the unwarranted intrusion.

Wong Sun, at 485.

Similarly, in United States v. Crews, 445 U.S. 467, 100

S.Ct. 1244, 63 L.Ed. 537 (1980), this Court cited Justice

Holmes opinion in Silverthorne Lumber Co. v. United States,

251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), for the

proposition that “[t]he exclusionary prohibition extends

16

as well to the indirect as the direct products of such

invasions.” This Court further noted that:

the exclusionary sanction applies to any

“fruits” of a constitutional violation - whether

such evidence be tangible, physical material

actually seized in an illegal search, items

observed or words overheard in the course of

the unlawful activity, or confessions or state-

ments of the accused obtained during an illegal

arrest and detention.

Crews, at 471.

The Supreme Court of Arkansas did not delineate its

reasons for holding that all evidence from the time of the

officer’s illegal entry into the respondent’s home should

have been suppressed. However, a basis for that reason-

ing is succinctly stated in the petitioner’s brief. The peti-

tioner cites Wong Sun, supra, that “evidence is subject to

exclusion where it has been obtained by exploitation of

the illegality instead of by means sufficiently distinguish-

able to be purged from the primary taint.” All of the

evidence sought to be suppressed came directly from the

exploitation of the illegal conduct of the police.

In United States v. Bailey, 691 F.2d 1009 (11th Cir. 1982)

that Court noted several factors to be considered in deter-

mining whether the evidence to be suppressed, in that

case the defendant’s conduct, was a product of illegal

police action. Those factors included, “temporal prox-

imity of the arrest and the defendant’s response, presence

or absence of intervening circumstances, and the purpose

and flagrancy of the official conduct.” Under this useful

analysis it becomes apparent that the respondent’s con-

duct was a direct and foreseeable consequence or product

eT

17

of the illegal actions of the police. The purpose of the

police in entering the house is less than clear in that the

encounter between the respondent and the officer had

already been peaceably terminated by the respondent.

The conduct of the officer was flagrantly violative of the

respondent’s Fourth Amendment right to be free from an

unreasonable invasion of his home by the government.

The evidence sought to be suppressed was obtained dur-

ing the occurrence of the primary illegality, the unwar-

ranted presence of agents of the government. The

purpose of the exclusionary rule is to protect the home by

requiring exclusion of anything incriminating gathered

by the police from the home. New York v. Harris, 495 U.S.

14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990).

This is not a case where the “chain of causation

proceeding from the unlawful conduct has become so

attenuated or has been interrupted by some intervening

circumstance so as to remove the ‘taint’ imposed . . . by

the original illegality.” United States v. Crews, 445 U.S. 463,

472, 100 S.Ct. 1244, 1250, 63 L.Ed. 537. The causal chain is

complete, unbroken, and very short. The original ille-

gality was continuing and the evidence sought to be

suppressed was part and parcel of the same event. While

the petitioner forecasts many dire results if this decision

is allowed to stand it becomes clear that the reasoning

advanced by the state would allow the invasion of a

private home for any reason or no reason at all, seizure of

the occupant and the filing of criminal charges should he

have the temerity to object, even in a passive manner. By

the state’s reading he would have no right to suppress

this evidence since it would be an “independent act of his

own free will.” The only redress would be a civil action

18

against the vastly superior resources of the state that,

even if successful, would do nothing to purge the indi-

vidual of the criminal charge.

The petitioner cites a number of cases to support its

position, all of which are distinguishable from the present

case in some fashion. Rather than distinguish each case

individually, the respondent notes that this Court has

recently and forcefully stated its position regarding the -

suppression of evidence gained in an illegal entry. In New

York v. Harris, this Court found that:

Even though we decline to suppress state-

ments made outside the home following a Pay-

ton violation, the principal incentive to obey

Payton still obtains: the police know that a war-

rantless entry will lead to the suppression of

any evidence found or statements taken inside

the home. (Emphasis added)

Harris, at 1644.

Thus this Court has explicitly found that the police

_ are charged with the knowledge that an illegal entry into

- the dwelling place of an individual in violation of the

Fourth Amendment will lead to suppression of evidence.

The situation in the instant case arose directly from the

illegal conduct of the government’s agents. The suppres-

sion of evidence in this instance does not, as the peti-

tioner asserts, effectively immunize the respondent from

prosecution for his allegedly criminal act because it fol-

lowed a Fourth Amendment violation. This is a misstate- |

ment of the result. A more appropriate reasoning is found :

in United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 |

L.Ed.2d 510 (1966):

'

19

In some cases, of course, prosecution may

be effectively foreclosed by the absence of the

challenged evidence. But this contemplated con-

sequence is the product of the exclusion of spec-

ific evidence tainted by the Fourth Amendment

violation and is not the result of a complete bar

tc prosecution.

Blue, at 255.

The circumstance in the instant case arose as a result

of an illegal and continuing violation of the respondent’s

Fourth Amendment rights. All the events complained of

occurred during this violation. There is not a separate or

defining event whereby the violation was concluded and

the respondent embarked on a separate course of con-

duct. All evidence gained during this continuing viola-

tion should have been suppressed as the Arkansas

Supreme Court so ruled. The very limited circumstances

of this case will not result in the situation the respondent

alludes to by citing United States v. Bailey, 691 F.2d 1009

(11th Cir. 1982) whereby a defendant would be granted

“an intolerable carte blanche to commit further criminal

acts so long as they are sufficiently connected to the chain

of causation started by the police misconduct.” Bailey,

decided before either Welsh v. Wisconsin, supra or New

York v. Harris, supra, involved an illegal stop in an airport,

where the separate crimes were flight, and after a pursuit,

an assault on an officer. The factual pattern is too dispa-

rate to make a suitable comparison with the case at bar.

Similarly, the petitioner’s assertion, made in a foot-

note, that the ruling by the Supreme Court of Arkansas in

the instant case effectively nullifies the refusal to submit

to arrest law in Arkansas misses the mark. While the

20

respondent did attempt to have this law declared invalid

by the Supreme Court of Arkansas, they declined to rule

on that issue. There is no indication that this case extends

to any situation other than where the primary illegality is

the entry of a home in violation of the Fourth Amend-

ment. This simply would not extend to the majority of

arrests under this statute which are doubtlessly not made

inside homes.

The decision of the Supreme Court of Arkansas that a

motion to suppress al! evidence after the illegal entry of

the police into the respondent’s home should be granted

is correct. All the evidence to be suppressed was obtained

during, and as a direct result of, a continuing illegal

action on the part of the police, and as such, subject to

suppression. The decision should be allowed to stand and

certiorari should not be granted.

¢

CONCLUSION

The Respondent, Larry Kenneth Butler, for all the

reasons stated above, maintains that the decision of the

Supreme Court of Arkansas should be allowed to stand,

and certiorari should be denied.

Respectfully submitted,

Don Lioyp Cook II

Attorney at Law

21 West Mountain Street

Suite 301

Fayetteville, Arkansas 72701

(501) 682-3650

Counsel for Respondent

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