State v. Gray

W.H. “Dub” Arnold, Chief Justice.

The State brings this interlocutory appeal under Ark. R. App. P. — Crim. 3(c), asserting the grounds that the trial court (1) improperly suppressed a one-pound bag of marijuana allegedly abandoned by appellee Mike Gray; and (2) erroneously concluded that appellee had standing to challenge the validity of a search warrant to search another person’s residence. The Attorney General maintains, as it is required to do under Rule 3(c), that the correct and uniform administration of justice requires our review of the trial court’s suppression order. Because we conclude that neither issue raised by the State involves the correct and uniform administration of justice, we dismiss the appeal.

On June 24, 1994, officers with the Third District Judicial Task Force met with a confidential informant to arrange an undercover sale of marijuana and crystal methamphetamine to Lavern Bruton at his residence in Pocahontas, Arkansas. Later that evening, the informant went to Bruton’s residence with ten pounds of marijuana and an eight-ball of crystal methamphetamine that had been provided to him by the task force. While the informant was inside the residence, Bruton telephoned appellee Mike Gray and instructed him to come to his house. When appellee arrived in a silver van, officers who were conducting surveillance observed Bruton come outside and sell him one pound of marijuana. After the sale, appellee drove away from the residence. Soon thereafter, officers executed a search warrant of the Bruton residence and recovered nine pounds of marijuana. When officers stopped appellee in his van, they found no controlled substances. However, while appellee was stopped, officers found a bag of marijuana in a ditch. The mark on the bag matched the markings on the other bags found in the Bruton residence that the informant had given Bruton.

Appellee was charged by felony information with possession of a controlled substance with intent to deliver. Thereafter, he filed a pretrial motion to suppress the one-pound bag of marijuana on the ground that it had been obtained pursuant to an invalid search warrant of Bruton’s residence. He further argued that he was on Bruton’s private property upon Bruton’s invitation when he was “unlawfully observed” by the officers. He further claimed that the warrant to search Bruton’s residence was invalid because it was an “anticipatory warrant.” The trial court conducted a suppression hearing at which Bruton testified, confirming that he had indeed delivered one pound of marijuana to appellee on the night in question. At the conclusion of the hearing, the trial court granted appellee’s motion and suppressed the bag of marijuana found in the ditch, from which the State now brings this interlocutory appeal.

The first issue presented is whether the trial court should have determined that appellee abandoned the marijuana in question and thus abandoned his rights under the Fourth Amendment. Before addressing the merits of this claim, we must first decide whether this issue is properly before us under Rule 3(c). Specifically, we must decide whether the correct and uniform administration of justice requires us to review this point.

In support of its argument, the State refers us to three cases regarding abandonment of Fourth Amendment rights. See Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989) (cocaine admissible where appellant tossed aside container of cocaine when he saw officers approaching him); Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989) (jacket and gun left at friend’s home held abandoned); and Cooper v. State, 297 Ark. 478, 763 S.W.2d 645 (1989) (appellant who fled his vehicle after traffic stop abandoned any expectation of privacy in car and its contents). A review of these decisions illustrates that the issue of abandonment necessarily turns on the facts in a given case. See State v. Tucker, 268 Ark. 427, 428, 597 S.W.2d 584 (1980) (“ [Abandonment is a fact question generally determined by a combination of acts and intent”).

Because the trial court’s decision in the present case necessarily turned on whether appellee in fact abandoned the marijuana, we must conclude that the resolution of this issue does not require an interpretation of our criminal rules with widespread ramifications. See State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997); citing State v. Harris, 315 Ark. 595, 597, 868, S.W.2d 488 (1994):

Where the trial court acts within its discretion after making an evidentiary decision based on the facts at hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim. P. 36.10 (now Ark. R. App. P. — Crim. 3(c)). '

We reach a similar conclusion regarding the State’s second allegation of error; that is, that the trial court erred in determining that appellee had standing to challenge the validity of the search warrant obtained to search Bruton’s-residence. Resolution of this issue required the trial court to determine whether appellee manifested a subjective expectation of privacy in Bruton’s residence and whether society is prepared to recognize this expectation as reasonable. See Dixon v. State, 327 Ark. 105, 937 S.W.2d 742 (1997). Because this issue presented a mixed question of law and fact, it too is not appealable.

It is well-setded that we only accept appeals by the State when our holding would establish important precedent. State v. Hart, supra; State v. Rice, 329 Ark. 219, 947 S.W.2d 3 (1997); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993). As neither issue presented by the State involves the correct and uniform administration of justice, we dismiss the appeal.

Appeal dismissed.

Glaze, J., dissents.