Millsap v. State

Cite as 2016 Ark. App. 192

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-733

Opinion Delivered April 6, 2016

MARCUS O. MILLSAP APPEAL FROM THE POPE COUNTY
APPELLANT CIRCUIT COURT
[NO. CR-2014-207]
V.
HONORABLE WILLIAM M.
STATE OF ARKANSAS PEARSON, JUDGE
APPELLEE
AFFIRMED

BRANDON J. HARRISON, Judge

Marcus Millsap entered a conditional plea of no contest to delivery of a controlled

substance and possession with the purpose to deliver, and he now appeals, arguing that the

circuit court erred in denying his motion to suppress. We affirm.

I. Facts

On 1 May 2014, agents working with the Fifth Judicial Drug Task Force (DTF)

met with a confidential informant to set up a controlled purchase of methamphetamine

from Millsap. In the early morning hours of May 2, after the purchase had been

completed, officers initiated a traffic stop of Millsap and arrested him. In June 2014,

Millsap was charged with delivery of methamphetamine, possession with the purpose to

deliver, and possession of a controlled substance.

On 8 April 2015, Millsap filed a motion to suppress any and all evidence seized

after the warrantless traffic stop and his arrest, asserting that there was no probable cause to

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stop his vehicle. On 23 April 2015, Millsap amended his motion to suppress to include

his custodial statement made after his arrest. He argued that he had asked that the

recording of his interview be stopped and had asserted his Miranda rights, but the State

violated Ark. R. Crim. P. 4.7 (2014) when it failed to preserve, on audio/visual

equipment, the part of the interview when he verbally invoked his Miranda rights during

the interview. Rule 4.7 governs the recording of custodial interrogations.

The circuit court held a suppression hearing on 4 May 2015. Tony Haley, a

narcotics investigator with the Arkansas State Police, testified that on 1 May 2014, he used

confidential informant Bruce Hurley to make a controlled buy of methamphetamine. He

explained that he had known Hurley for approximately ten years, that Hurley had an

extensive criminal history, and that in exchange for assisting the police, Hurley would not

be charged with two counts of delivery of methamphetamine. Haley testified that he had

been familiar with Millsap for five or six years and that Hurley was supposed to purchase

four ounces of methamphetamine from Millsap for $3600. Haley explained that the

transaction was scheduled to occur at Hurley’s residence on 1 May 2014 and that on the

afternoon of May 1, he met with Hurley at his residence, searched Hurley’s person and

residence for controlled substances and found none, and then listened to Hurley make

telephone contact with Millsap. Once Millsap was on his way to the residence, Haley

equipped Hurley with an electronic-monitoring device, set up a video recorder inside

Hurley’s residence, and gave Hurley $3600 in buy money. Haley then hid in an

abandoned car in the front yard and observed the residence.

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Haley watched Millsap and a female, identified as Christy Hamilton, arrive at

Hurley’s residence. Haley stated that Millsap and Hamilton were in the residence less than

thirty minutes, and then they, along with Hurley, left in Millsap’s vehicle. Hurley texted

Haley and told him that the deal had not yet taken place and that they were going down

the road to look at a trailer house that Millsap was interested in buying. After

approximately one hour, the three of them returned and went back into Hurley’s

residence. After another hour, Millsap and Hamilton left the residence. Haley then

entered the residence, confirmed with Hurley that the purchase had taken place, and

retrieved approximately two ounces of methamphetamine from Hurley. Haley then gave

the order to nearby officers to stop Millsap’s vehicle and arrest him. Other officers picked

up Haley, and they proceeded to the Russellville DTF office. Haley testified that he

arrived at the office at approximately 1:15 a.m. on May 2; Deputy Noyes with the Pope

County Sheriff’s Office brought Millsap in and escorted him to an interview room soon

after.

Haley stated that Millsap was in the interview room approximately five minutes

before he and Agent Chad Stephenson went into the room. Haley said that he told

Millsap what he was charged with and that the officers wanted to speak to him, and that

he advised Millsap of his Miranda rights. Haley explained that he read the Miranda-rights

form to Millsap and that Millsap acknowledged and understood his rights. Millsap

initialed the Miranda-rights form and signed a waiver of rights, which was introduced as

State’s Exhibit 1. Haley stated that the interview room was set up so that interviews are

recorded and that the recorder was on that night. The recording system had only been

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operational for a couple of months, and only a few interviews had been conducted since

the recording system’s installation. Haley explained that after Millsap had signed the

Miranda waiver of rights, he asked if the interview was being recorded, and Haley

confirmed that it was. According to Haley, Millsap then stated, “If you will turn it off, I

will talk to you.” Haley asked Agent Stephenson to turn off the recorder, which he did,

and Haley then proceeded to question Millsap about the drugs that had been found in his

vehicle. Haley said that Millsap took ownership of the drugs and said that he was selling

drugs “to support [his] habit.” Millsap then told Haley about other individuals from

whom Millsap could purchase a large amount of methamphetamine.

Haley stated that Millsap was forty-eight years old, very intelligent, and familiar

with the legal system. He explained that Millsap had previous convictions for possession

of a controlled substance, delivery of a controlled substance, drug paraphernalia, and

retaliation against a witness. Haley denied making any threats or promises to Millsap.

Haley also explained that in preparing this case for prosecution, he attempted to

recover the recording of Millsap’s interview, up to the point where he asked that the

recorder be turned off, but the recording was not there. On cross-examination, he

confirmed that all verbal communications between himself and Millsap, including his

explanation of Millsap’s Miranda rights and Millsap’s request to turn off the recorder, had

been erased. He also testified that he was aware that Hamilton was Hurley’s ex-wife.

Haley explained that Hurley was not a “good citizen” but that was why he took steps to

eliminate the opportunity for Hurley to lie to him. In response to the question of

whether Hurley might have motive to set up Millsap, Haley stated, “Anything is

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possible.” He also explained that the video recorder inside Hurley’s residence did not

function properly and acknowledged that he could not see what had occurred inside the

residence. He also acknowledged that in the audio recording of the controlled buy, the

words “drugs” or “controlled substances” are not used and that when Millsap says he will

have to meet Hurley in Little Rock later “to get the other two,” he does not identify

what he is talking about. Haley agreed that he relied on Hurley.

Jeffrey Noyes, a patrol division supervisor for the Pope County Sheriff’s Office,

testified that on May 1, 2014, he assisted the DTF by stopping a vehicle for them. He

explained that shortly before 1:00 a.m. on May 2, DTF officers called him and gave him a

description of Millsap’s car. Noyes located the vehicle a short time later and arrested

Millsap, who was driving the car. Noyes searched Millsap and found a large amount of

currency, roughly $3700, and a small plastic bag containing what Noyes believed to be

methamphetamine. Noyes transported Millsap to the DTF office and placed him in an

interview room.

David Davis, a coordinator for the DTF, testified that he participated in the search

of Millsap’s car after his arrest. He testified that between the passenger seat and the

console, he found a black bag containing two ziploc baggies of what he believed to be

methamphetamine and a large amount of cash. He stated that the money found in the

black bag matched the money that was given to the informant for the controlled buy, and

the bag contained about three ounces of methamphetamine. Davis explained that as the

DTF coordinator, he was responsible for the recording equipment in the interview room.

Davis said that he thought the recordings would be kept until the hard drive was full,

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which would take months, but after the recording in this case could not be retrieved, he

learned that recordings were only kept for a thirty-day period and then deleted. He said

that he had since taken steps to rectify the situation.

Chad Stephenson, an officer with the Pope County Sheriff’s Office who is assigned

to the DTF, testified that he participated in the interview with Millsap on May 2, that

Haley advised Millsap of his Miranda rights, and that Millsap asked them to shut off the

recording device. Stephenson explained that he left the room to shut off the recorder and

then returned to the interview room, where Millsap said that the drugs in the car

belonged to him and told officers of other people from whom he could buy

methamphetamine.

Millsap testified too. He said that when he was stopped, he did not understand that

he was arrested, only that he was wanted for questioning. He testified that Deputy Noyes

took him to the DTF office, and he agreed that he asked the officers to turn off the

recording of the interview. Millsap agreed that it was his understanding that whatever he

said would not be used against him, and he also agreed that he invoked his right to

counsel. The officers, according to Millsap, continued to talk to him, just “casual

conversation,” after he asked for an attorney. On cross-examination, he agreed that no

threats had been made against him, that he was familiar with the Miranda rights, and that

those rights had been given to him in this case. He also stated that he invoked his right to

an attorney after he had asked the officers to turn off the recording. When asked why he

did not invoke his right to an attorney while the recording was still on, Millsap said that

he “was in a very nervous situation.” And he repeated that any questions the police asked

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after he had requested an attorney were “just conversation” and that he “didn’t consider it

questioning.” On redirect, Millsap reiterated that he did not believe that what he said to

the police would be used against him because it was “off the record.”

Tony Haley was recalled and testified that Millsap did not request an attorney at

any time during the interview.

In closing arguments, the defense argued that there was no showing of reliability of

the informant and that the stop was not based on probable cause. The defense also argued

that the State had a duty to preserve any recording under Ark. R. Crim. P. 4.7.

From the bench, the court made the following findings. First, it found that “there

was reasonable suspicion to believe that a felony had taken place. Thus there was

authority to arrest without a warrant based on the facts of the controlled buy.” Second,

the court declined to read Rule 4.7 as a rule requiring automatic exclusion if there is a

failure to preserve a recording. The court found that Davis gave a “satisfactory

explanation” of why the recording was deleted and that there was no bad faith on the part

of the police. And finally, the court found that whether Millsap invoked his right to

counsel was “purely a credibility issue,” which the court resolved in favor of the State. It

stated,

I’m going to find that he did not, and I credit the testimony of Officer
Stephenson and Officer Haley the best evidence of that. While you don’t
have a recording, which you didn’t need one because Mr. Millsap testified
all that occurred—supposedly occurred after the recording was turned off.
The Miranda rights form is the best evidence, along—coupled with Mr.
Millsap’s familiarity with the Miranda warnings through his previous criminal
history and the fact that he would be advised of his Miranda rights and
understand his Miranda rights and then get the recorder turned off, which
they complied with his request, and then he invoked counsel just doesn’t

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make sense. It seems to me a person would invoke counsel while the
recorder was on to preserve that important right.

The motion to suppress was therefore denied.

Following this ruling, Millsap entered a conditonal plea of no contest to delivery of

a controlled substance and possession with purpose to deliver and was sentenced to ten

years’ imprisonment on each count, to run consecutively. (The possession charge was

nolle prossed.) Millsap has now appealed, arguing that the circuit court erred in denying

his motion to suppress.

II. Standard of Review

When reviewing a circuit court’s denial of a motion to suppress evidence, the

appellate court conducts a de novo review based on the totality of the circumstances,

reviewing findings of historical facts for clear error and determining whether those facts

give rise to reasonable suspicion or probable cause, giving due weight to the inferences

drawn by the circuit court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding

is clearly erroneous, even if there is evidence to support it, when the appellate court, after

reviewing the entire evidence, is left with the definite and firm conviction that a mistake

has been made. Id. We defer to the circuit court’s superior position in determining the

credibility of the witnesses and resolving any conflicts in the testimony. Id.

III. Suppression of Evidence From the Traffic Stop

An officer may stop a vehicle and make a warrantless search if it is on a public

highway, and he or she has reasonable cause to believe the vehicle contains evidence

subject to seizure, and the circumstances require immediate action to prevent destruction

or removal of the evidence. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989).
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Reasonable cause as required by Ark. R. Crim. P. 14.1 exists when the officers have

reasonably trustworthy information, which must be more than mere suspicion, that the

stopped vehicle contains evidence subject to seizure and a person of reasonable caution

would be justified in believing an offense has been committed or is being committed. Id.

The test for reasonable cause for stopping and searching a vehicle depends on the

collective information of the police officers and not solely on the knowledge of the officer

stopping the vehicle. Id.

Millsap argues here, as he did below, that the warrantless traffic stop lacked

probable cause. He asserts that the State failed to establish the reliability of the informant,

citing Hurley’s criminal history and the circumstances of the controlled buy as described

by Haley. Millsap specifically contends that Haley “admitted that he had to rely upon

hearsay of the unreliable informant to know whether a controlled buy had occurred and

to order the stop of the vehicle.”

Millsap compares this case to Jones v. State, 2011 Ark. App. 683, in which this court

affirmed the denial of a motion to suppress under similar facts. In Jones, police officers set

up a controlled buy between the informant and a person named Latisha Longnecker.

Officers watched the informant enter an apartment; Longnecker enter the apartment;

Longnecker exit the apartment and get into the passenger seat of a white Mitsubishi driven

by Jones (who was previously identified by the informant as “the dope guy”); Longnecker

reenter the apartment; and the informant exit the apartment and present a small bag of an

off-white, rock-like substance, later identified as cocaine, to the officers. Jones argued that

because the police did not testify that the informant was reliable, they were “relying on

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the hearsay of an unproven person to use as a basis for the stop.” Id. at 3. In affirming, this

court explained,

Here, the officers observed the controlled buy visually to the extent possible
and also listened to the conversation between the informant and
Longnecker. Based on their observations, they knew that Longnecker did
not have the drugs when the informant first arrived. After going out to the
white Mitsubishi, however, she returned with what she represented to be
drugs. Based on the officers’ own observations, it was reasonable to
conclude that the Mitsubishi driver was involved in the drug transaction.
Therefore, probable cause existed regardless of the informant’s reliability.

Id. at 4–5. Millsap argues that Jones is distinguishable from the present case because “Haley

admits that he could not observe the transaction” and “the informant had plenty of

opportunity to retrieve [the] controlled substance, and put money in the Appellant’s

vehicle other than from the Appellant.”

We are not persuaded that Jones is distinguishable in a meaningful way. In Jones,

the officers could not see an exchange of contraband between Jones and Longnecker or

Longnecker and the informant, but we concluded that from the totality of the

circumstances, including the officers’ observation, the audio of the conversation between

the informant and Longnecker, and the informant’s possession of drugs immediately after

the transaction, that the stop of Jones’s car was supported by probable cause. The same

analysis applies here: Haley did not actually see the purchase of methamphetamine that

took place inside Hurley’s residence; but based on the totality of the circumstances,

including Haley’s observation of Millsap’s arrival and departure, the audio of the

conversation between Hurley and Millsap, and Hurley’s possession of methamphetamine

immediately after his interaction with Millsap, we hold that probable cause existed to

justify the warrantless stop and arrest of Millsap, regardless of the informant’s reliability.
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IV. Suppression of the Custodial Statement

A statement made while in custody is presumptively involuntary, and the burden is

on the State to prove by a preponderance of the evidence that a custodial statement was

given voluntarily and was knowingly and intelligently made. See Grillot v. State, 353 Ark.

294, 107 S.W.3d 136 (2003). To determine whether a waiver of Miranda rights is

voluntary, this court looks to see if the confession was the product of free and deliberate

choice rather than intimidation, coercion, or deception. See id.

For his first argument under this point, Millsap appears to argue that the officers

employed some type of deception in obtaining his statement. He states that he knew

Haley “from [a] previous relationship” and that “he trusted Haley when Haley promised

him that he could talk off the record and that his statement would not be used against

him.” But Millsap never made this argument to the circuit court. Arguments not raised

below are waived, and parties cannot change the grounds for an objection on appeal but

are bound by the scope and nature of the objections and arguments made at trial. See

Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002). 1

Millsap also argues that the circuit court should have suppressed the use of his

custodial statement due to the State’s failure to comply with Rule 4.7 of the Arkansas

Rules of Criminal Procedure. Rule 4.7 provides that, whenever practical, a custodial

interrogation should be electronically recorded. Ark. R. Crim. P. 4.7(a). The rule also

1
The record reveals that Millsap never testified that Haley made any promises to
him and specifically never testified that Haley promised his statement would be “off the
record” and not used against him. Millsap only agreed during direct examination that it
was his “understanding” that whatever he said would not be used against him.
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provides that in determining the admissibility of any custodial statement, the court may

consider, together with all other relevant evidence and consistent with existing law,

whether an electronic recording was made, or if not, why an electronic recording was not

made. Ark. R. Crim. P. 4.7(b)(1). However,

(2) The lack of a recording shall not be considered in determining the
admissibility of a custodial statement in the following circumstances:
....

(F) a statement made during a custodial interrogation by a suspect who
requests, prior to making the statement, to respond to the interrogator’s
questions only if an electronic recording is not made of the statement,
provided that an electronic recording is made of the statement of agreeing to
respond to the interrogator’s question, only if a recording is not made of the
statement[.]

Ark. R. Crim. P. 4.7(b). Finally, the rule dictates that an electronic recording must be

preserved until the later of (1) the date on which the defendant’s conviction for any

offense relating to the statement is final and all direct and postconviction proceedings are

exhausted, or (2) the date on which the prosecution for all offenses relating to the

statement is barred by law. Ark. R. Crim. P. 4.7(c).

Millsap agrees that there is no dispute that he asked for the recording to be turned

off. He does argue, however, that under Rule 4.7(c), the State had a duty to preserve the

recording that was made until the time he asked for it to be stopped, and because that was

not done, his custodial statement (made after the recording had been stopped) should have

been suppressed.

We disagree. Rule 4.7 does not require automatic exclusion, and subsection

(b)(2)(F) clearly states that the lack of a recording is not considered in determining the

admissibility of a custodial statement if the person interviewed asked for the recording to
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be stopped, which is what happened here. We affirm the circuit court’s denial of the

motion to suppress.

Affirmed.

GLADWIN, C.J., and WHITEAKER, J., agree.

Laws Law Firm, P.A., by: Hugh R. Laws, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.

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