dissenting. I respectfully dissent from the majority opinion because I believe that the majority has incorrectly applied the law in concluding that the police officers’ entry into the Baird residence was unlawful. Police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home. Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (citing Payton v. New York, 445 U.S. 573 (1980)). An important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Welsh v. Wisconsin, 466 U.S. 740, 753 (1984). While conducting legitimate emergency activities, the police may seize any evidence that is in plain view. Mincey v. Arizona, 437 U.S. 385, 393 (1978). The Supreme Court wrote the following explanation of its holding in Mincey:
We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. Michigan v. Tyler, supra, 436 U.S., at 509-510, 98 S.Ct., at 1950-1951.“The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Wayne v. United States, 115 U.S. App. D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.).
437 U. S. at 392-93 (footnotes omitted, emphasis added).
In Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997), Officers Bobby Bozarth and Willie Dinwiddie of the Augusta Police Department heard shots fired, drove to the area where the shots had originated, and discovered the bodies of a murder victim and a wounded survivor. The survivor and another individual identified Humphrey as the perpetrator of the crime, but the officers called Woodruff County Sheriff Jack Caperton and waited for his arrival before going to the nearby house where Humphrey resided with his grandmother. Appellant Humphrey argued, as does the appellant in the present case, that under Payton v. New York, 445 U. S. 573 (1980), officers lacked reasonable cause to arrest and lacked exigent circumstances to justify the warrantless entry into his home. The supreme court rejected this argument on the following basis:
Exigent circumstances are those requiring immediate aid or action, and, while there is no definite list of what constitutes exigent circumstances, several established examples include the risk of removal dr destruction of evidence, danger to the lives of police officers or others, and the hot pursuit of a suspect.
In the present case, murder had been committed, clearly a most grave offense. Since the victims were shot and no murder weapon was immediately apparent at the crime scene, the officers had good reason to believe that the suspect was armed and dangerous. Additionally, Bozarth and Dinwiddle testified that they heard gunshots at about 3:35 a.m., and Caperton testified that they arrived at the residence at 4:21 a.m., less than an hour after the shootings. As discussed above, the officers had strong probable cause to believe that Humphrey was the perpetrator. Dinwiddle also knew that Humphrey lived with his grandmother, giving the officers a strong reason to suspect that Humphrey was in the premises being entered. Under these particular facts, we conclude that sufficient exigent circumstances existed to justify a warrantless entry into the home, even if [the suspect’s grandmother] did not consent to the entry.
327 Ark. 753, 767-78, 940 S.W.2d 860, 867-68 (1997), citing Butler v. State, 309 Ark 211, 829 S.W.2d 412 (1992), and Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984).
In the present case, the trial court’s ruling on the suppression issue included the following:
As to the arrest, in my judgment, the totality of the circumstances and the undisputed testimony of Chief Martin that he was concerned there were other victims in the home. Whatever was on the doorframe, it appeared to him, a veteran police officer of over twenty-five years, that there was blood at that location and on those objects.The door comes open, it’s not latched, and he sees a person inside who is apparently either dead or asleep. He doesn’t say that but clearly the implication to me is clear that they’re concerned about possible additional victims....
I understand your issue about the entry into the house but in my view the initial entry into the house by the police officers was clearly the result of the exigent circumstances and permissible in this particular fact situation. Once they were in the house clearly they had the homeowner’s permission to proceed to the bedroom where the Defendant was observed and later arrested. So the motions are denied.
The standard of review for a trial court’s action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We give considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts, and we must defer to the superior position of the trial judge to pass upon the credibility of witnesses. Id., citing State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978).
Here, the majority opinion agrees with appellant that “neither Hiatt nor other officers went directly to the Baird residence.” The majority recites that Officer Hiatt was called to the hospital at 5:30 a.m. but ignores his testimony that after Chief Martin came to the hospital, the two of them and Deputy McAffee went to appellant’s residence and arrived “at or around”' 6:00 a.m.
Chief Martin testified that there were drops of blood on the door facing and “a smear where someone had drug their hand or fingers or something but it was high enough. . . it would have to have been a hand. That’s another reason I was concerned about the people inside.” His further testimony contradicts the majority’s assertion that there was no evidence of officers’ asking Brent if anyone at the residence had been injured:
I called out to Brent and he sat up. I asked him if he was okay and he said he was. I asked where his dad and Chancey were and he said, “Dad is in there,” pointing to the bedroom almost adjoining the front door. Officer Hiatt and Deputy McAffee stepped in the mobile home. I pushed the door open and called to Buddy four or five times. He was lying face down on the bed fully clothed. I got no response. I walked closer and shook his foot. That’s when he rolled over and called me by name. I noticed what I believed was blood on his shirt from a finger or hand. I asked if he was okay and he said he was. I asked him where Chancey was and he said,“If he’s here he’s in the back bedroom.”
(Emphasis added.) It is clear that the trial court believed this testimony about blood at the doorway, an unresponsive person inside, and concern for possible victims other than the girlfriend who had been cut up so badly that a hospital doctor had predicted that “she was probably not going to make it.”
Probable cause, which is probable cause to believe that an offense has been or is being committed, is closely interrelated to the question of the existence of exigent circumstances. Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988). Exigent circumstances are those requiring immediate aid or action: one established example is danger to the lives of police officers or others. Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). The Fourth Amendment does allow a warrantless entry and search when the police reasonably believe that someone within a residence is in need of immediate aid. Mitchell v. State, supra (citing Mincey v. Arizona, supra).1
Here, the officers had probable cause to arrest appellant, who had been named by the victim as the perpetrator of this serious crime. Within as little as half an hour, they arrived at his residence, with strong reason to believe that he was there. The weapon used in committing this serious crime had not been found, and the officers collectively had seen the victim’s gruesome injuries, blood on the doorframe of the residence, and a person either dead, unconscious, or asleep in the first room beyond the unlatched door. Given these observations, there was reasonable cause for Officer Martin’s belief that there might be other victims,2 and thus the officers’ entry into appellant’s home came within the exigent-circumstances exception to the warrant requirement of the Fourth Amendment.
I would affirm the trial court’s denial of the motion to suppress.
In Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), a police sergeant investigated a mid-morning, anonymous telephone call that said that a man had been dead all night in a house at 3408 ShortWilma Street in Fort Smith. Finding no such address, the sergeant instead went to nearby 3408 Wilma Street, where he knocked and received no response. He walked around the residence and asked a neighbor whether he had heard anything or seen anyone leaving, but the neighbor had not.
The officer turned the knob of the unlocked door and pushed it inward until it was caught by a chain. He saw what appeared to be a body wrapped in a blanket on the floor in front of the couch. He called into the house, and someone yelled “to get the hell out.” Mitchell, who apparently had exited from a back window, was seen leaving and was arrested. The supreme court, addressing whether the officer had probable cause to believe that a felony had been committed when he opened the door of Mitchell’s residence, found that the warrantless entry was a violation of the Fourth Amendment.The supreme court further found that a common sense evaluation of the phone call could only lead to the conclusion that no one was in need of medical attention, and that the State had not proven the existence of exigent circumstances.
The majority, citing Starks v. State, 74 Ark. App. 66, 49 S.W.3d 122, (2001), characterizes Chief Davis’s claim of exigent circumstances as “speculative, at best.” The historical facts of Starks and the present case are quite different.
Officers in Starks were called to a shooting at a residence. An individual opened the door, pointed inside, and said, “He’s in the back.” Officers went in and found Starks, who had been shot, lying in the doorway of a back bedroom. A sergeant securing the scene immediately found a nine-millimeter pistol and several nine-millimeter shell casings. He also found a .40 caliber shell casing and an empty pistol case, and an infant child was found in the residence. After Starks was taken away to get medical attention, the sergeant re-entered the back bedroom to look for the .40 caliber pistol. He found items that led to Starks’s conviction for possession of cocaine.
This court found that Starks’s need for medical attention justified the initial entry into his residence; however, we agreed with his argument that the search for the pistol was not justified when the premises were already secure and only police personnel were present. We found that that the circumstances had changed when Starks was taken away by ambulance, when the harm became potential or speculative rather than imminent. We held that the officer’s re-entry into the back bedroom exceeded the scope of his emergency duties, and that his expressed intention to make the premises safe for small children before turning it over to “family members” waiting outside did not justify searching the house for a weapon.