dissenting. The appellant, James Keenom, argues in this appeal that his Fifth Amendment rights were violated. In particular, Keenom never argued that issue, nor did he obtain the court’s ruling on the constitutional issue.1
Keenom spends considerable time discussing an “0-1“ form, which he abstracts as reflecting, “the defendant intends to suppress evidence on the grounds of illegal search and arrest, and he intends to suppress admissions on the grounds of: coercion; violation of Miranda; and unlawful arrest.” Apparently, this is a preliminary form counsel and the trial judge signed after Keenom was arraigned and prior to other pretrial matters and hearings.
Arkansas law is well settled that an appellant must raise and make an argument at trial in order to preserve it on appeal, see Halford v. State, 342 Ark. 81, 88, 27 S.W.3d 346, 351 (2000), and even constitutional issues must first be presented below to be preserved for appellate review. See Nance v. State, 339 Ark. 192, 200, 4 S.W.3d 501, 506 (1999).
Here, Keenom and the State filed briefs, wherein they addressed the legality of the officers’ “knock and talk” procedure used to search Keenom’s trailer. It was this “knock and talk” issue the trial judge considered in ruling that the State’s search was valid. The judge made no mention of coercion or the violation of Miranda on the officers’ parts. Nor was the judge asked to rule on any custodial issue that may have ensued at the time Keenom admitted that he possessed a quarter of a gram of methamphetamine.2
In this case, as in many, a defendant is confronted with choosing his defenses as the case evolves. Understandably, in these circumstances, Keenom chose to question the officers’ knock and talk decision in going out to Keenom’s trailer at 11:30 at night, rather than trying to show coercion — an element which, on the evidence shown, would have been difficult, to say the least.
In reviewing a ruling denying a defendant’s motion to suppress, this court makes an independent determination based on the totality of the circumstances and views the evidence in the light most favorable to the State, and will reverse only if the trial court’s ruling is clearly against the preponderance of the evidence. Griffin v. State, 347 Ark. 788, 67 S.W.3d 582 (2002). Our court defers to the trial court in assessing witness credibility. Id.
In looking at the evidence in favor of the State, as this court is required to do, the officers drove to Keenom’s trailer by way of a dirt road3 in order to talk to Keenom concerning Detective David Jones’s observations and investigation of Keenom’s earlier purchase and possession of items known to be used in the manufacture of methamphetamine.4 See Embry v. State, 70 Ark. App. 122, 15 S.W.3d 367 (2000) (court held there is no expectation of privacy in driveways, which are commonly used by visitors to approach dwellings). Keenom saw the officers’ cars approaching his trailer, and he walked out to meet them. It was about 11:30 p.m. Keenom had his lights on in his home.
Officer Jones, accompanied by three other officers, told Keenom that he had seen Keenom that day purchase items at WalMart that could be used to make methamphetamine and asked for consent to search his trailer. Keenom refused. They talked a few seconds longer, and Keenom said he would feel better about the officers searching if he first could have ten minutes in the trader. They continued to talk and Detective Jones asked whether methamphetamine was inside the trailer. Keenom said that there was approximately a quarter of a gram. Keenom then added he might have parts of a lab inside his residence because his friends sometimes paid him to use his trailer to manufacture methamphetamine. After Keenom volunteered this information, the officers Mirandized Keenom, arrested him, and Keenom consented to the search of his trailer. Keenom testified that the interview between him and the officers took approximately twenty minutes.5 Officer Noblin testified that, if Keenom had gone back inside his trailer, “[w]e would have loaded up . . . our cars and left.”
Under the circumstances of this case, the trial court could have reasonably found that the only evidence of coercive conduct by the officers came from Keenom and that a reasonable person could have felt free to terminate the encounter by going inside his trailer. See Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002). As previously indicated, Keenom was awake and his lights were on at 11:30 p.m., and he was aware that there were cars on their way to his home when he walked out of his house to meet them. The officers departed their cars and immediately told Keenom why they were there, but after about twenty minutes of questioning, he admitted he possessed methamphetamine, he had items that he and friends could use to make methamphetamine, and people paid him for use of his trailer to manufacture methamphetamine.
Having concluded that the officers’ actions were not coercive or unreasonable, the issue then centers upon a search incident to arrest. Keenom was lawfully arrested upon his admitting possessing methamphetamine and having assisted others in the manufacturing of methamphetamine. Because the officers’ actions were lawful and resulted in their acquiring contraband in Keenom’s possession, the judge’s rilling to deny Keenom’s suppression motion was correct. See Wong Sun v. United States, 371 U.S. 471 (1963). I would affirm.
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The majority opinion apparently agrees that Keenom failed to preserve this Fifth Amendment issue, since that opinion does not discuss it in reaching its decision.
To the contrary, the trial judge, in ruling on the validity of the officers’ knock and talk procedure, relied on the officers’ observations as being reasonable when “going out and doing the so-called knock and talk.” Attached is a copy of the trial court’s findings and ruling on Keenom’s motion to suppress.
The majority writes the police passed “no trespassing” signs that they stated they “did not see.” The only evidence of these signs is the testimony of Keenom and his mother. The photographs of his property that Keenom entered into evidence were not taken until after the night of the incident. The trial judge resolves matters of credibility. Scott v. State, 347 Ark. 767, 67 S.W.3d 567 (2002).
Officer Jones also testified that he observed Keenom at Wal-Mart with another man who was buying Heet brand fuel cleanser and two containers of camping fuel. The majority notes the items that the second man purchased, but does not mention that Jones identified the items as precursors to methamphetamine production.
The majority opinion relies on some testimony that this interview period lasted as long as forty-five minutes, but Keenom said the time span was about twenty minutes. The trial court could have believed his version, which makes the period shorter and reasonable. Certainly, this short twenty-minute period can hardly be an unlawful functional equivalent of physical restraint, as the majority opinion suggests. In addition, the opinion reflects the belief in Keenom’s testimony that Keenom was denied the right to go inside his home to retrieve some clothing, and expresses belief in Keenom’s story that the officers refused to let him return to his trailer or allow him to get his jacket, concluding Keenom’s testimony went unchallenged. The trial court simply was not required to believe Keenom’s testimony on those evidentiary issues. Scott, 347 Ark. 767, 67 S.W.3d 567.