Pubdate: Thu, 13 Sep 2001
Source: Arkansas Democrat-Gazette (AR)
Copyright: 2001 Arkansas Democrat-Gazette, Inc.
Contact:  http://www.ardemgaz.com/
Details: http://www.mapinc.org/media/25
Author: Michael R. Wickline - Arkansas Democrat-Gazette

DRUG CASE OVERTURNED ON APPEAL

The state Court of Appeals on Wednesday overturned a judge's refusal to 
suppress items seized from a man's home in a warrantless search after a 
woman pulled out a tray of marijuana in response to a policeman asking, 
"Where's the marijuana?"

In a 3-2 decision, the court sent the case of Perry Burton Holmes back to 
Faulkner County Circuit Judge David L. Reynolds, who had denied Holmes' 
motion to suppress the marijuana and related items. Holmes had entered a 
conditional guilty plea and was sentenced to five years' probation for 
possession of methamphetamine, drug paraphernalia and marijuana.

On Holmes' motion to suppress, Reynolds found that police officers were 
justified in entering Holmes' house to ensure their safety in light of the 
fact that David Ellis, a visitor to the house, was reported to have a gun.

According to court records, Officer Keith Srite had stopped at the home to 
investigate a call that Ellis had a gun and possibly was violating a 
no-contact order. Ellis and Holmes came out of the home. Srite did a 
pat-down search of Ellis. More officers arrived, and Srite told them to 
take Ellis and Holmes to separate police vehicles to talk.

Srite noticed that Rose Beth Allen was inside the house and had come to the 
door. Srite told her he needed to talk to her.

The appeals court said Srite said Allen opened the door without making any 
comment, and he smelled marijuana after entering the home. He asked, 
"Where's the marijuana?" Srite said she pulled out a tray of marijuana and 
other drug materials.

Allen said she didn't live in the house but Holmes did and that the 
marijuana was his, Srite said. Srite then went out and advised Holmes of 
his rights and obtained written consent from Holmes to search his home.

The officers seized butts of smoked marijuana cigarettes, marijuana seeds, 
other materials and a small amount of suspected methamphetamine.

Judge Josephine Linker Hart, who wrote the opinion, said that what Allen 
intended is unclear because Srite testified he did not solicit Allen's 
consent to enter Holmes' home and Allen didn't give him verbal permission 
to enter the house.

"Was she inviting the officer inside [Holmes'] home, or was she reacting to 
the command of a law enforcement officer who may have drawn his weapon and 
was accompanied by at least two other officers who had already taken away 
the person who resided in the house?" Hart asked.

Hart said the court concluded Srite operated beyond established parameters.

Judges Karen Baker, Olly Neal, Jr., and Andree L. Roaf agreed. Judges Sam 
Bird and Larry Vaught dissented.