Echols v. State

Cite as 2015 Ark. App. 304
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-326
Opinion Delivered MAY 6, 2015
BRUCE ALLEN ECHOLS APPEAL FROM THE SALINE
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-12-513A-3]
V.
HONORABLE GRISHAM PHILLIPS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Bruce Allen Echols was convicted of four counts of aggravated robbery, each
of which occurred during a bank robbery at First Security Bank in Benton on September 6,
2012. Mr. Echols was sentenced to four concurrent thirty-year prison terms, and he now
appeals.1
On appeal, Mr. Echols argues that his arrest was pretextual, not supported by probable
cause, and therefore illegal. Mr. Echols contends that, because he was illegally arrested, the
trial court erred in denying his motion to suppress his custodial statements to the police, as
well as physical evidence obtained pursuant to a subsequent search warrant that was in part
1
This appeal was previously before this court, and we remanded to settle and
supplement the record with a transcript of appellant’s custodial statement to the police. See
Echols v. State, 2014 Ark. App. 688. We also ordered rebriefing to cure additional
deficiencies in appellant’s addendum. Id. Pursuant to our directives, the record has now
been supplemented and a conforming abstract, brief, and addendum has been filed.
Cite as 2015 Ark. App. 304
based on those custodial statements. Mr. Echols asserts that all of this incriminating evidence
was derived from his illegal detention, and that it should have been excluded as fruit of the
poisonous tree.2 We affirm.
In reviewing the denial of a motion to suppress evidence, this 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 inferences drawn by the trial court. King v. State, 2014
Ark. App. 81, 432 S.W.3d 127. We defer to the trial court’s credibility and weight-of-the-
evidence determinations, and we reverse only if the court’s decision is clearly against the
preponderance of the evidence. Gilbert v. State, 2010 Ark. App. 857, 379 S.W.3d 774.
On September 6, 2012, First Security Bank was robbed by a man wearing a
camouflage t-shirt, blue jeans with a white object hanging out of the right rear pocket, and
a black mask over his face. The robber wielded what appeared to be a black handgun, and
he was seen leaving in a white Hyundai Sonata.
On September 8, 2012, the Benton Police Department received a report from an
AT&T phone store in Bryant of suspicious behavior involving a man making unusually large
purchases with cash. The police spotted a white Hyundai Sonata leaving the AT&T parking
lot that day and stopped the car for an illegal lane change and failure to wear a seat belt.
2
Mr. Echols, who is represented by counsel, filed a pro se motion to supplement the
brief after his counsel’s brief was filed, attempting to make additional arguments on appeal.
We deny the motion. See Winston v. State, 2009 Ark. 439.
2
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The driver of the Hyundai was appellant’s brother, Terry Echols, and he consented to
a search of the vehicle. During the search, the police discovered certain items of clothing
matching that worn by the robber at First Security Bank in the trunk of the car, including
jeans, the shoes worn in the robbery, and a black mask. A twenty-dollar bill was found in
Terry Echols’s wallet that was confirmed to have been stolen from the bank, and money
recovered from the AT&T store was also found to have been stolen from the bank.
Upon questioning, Terry Echols told the police that the car belonged to his mother
but that his brother, Bruce Echols, drove it all the time. Terry advised that he was borrowing
the vehicle from Bruce that day, that he was aware of the robbery but was not involved, and
that he had received money from Bruce and used it to buy items from the AT&T store.
Based on Terry’s statements, the police developed Bruce Echols as a suspect in the
robbery. The police arrested Bruce on September 8, 2012, on a pre-existing arrest warrant
dated August 20, 2012, for failure to appear in district court on the misdemeanor charge of
second-degree terroristic threatening. Bruce was arrested at his mobile home in Benton,
where he and Terry lived together.
After being arrested Bruce was transported to the police station, where he waived his
Miranda rights and was interrogated by officers about the robbery. During the first couple
of hours of the investigation, Bruce denied any involvement in the robbery. However, he
subsequently confessed, in some detail, to committing the robbery. Bruce told the officers
about a black, hand-made object that was made to look like a gun, and he indicated that he
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had used the object in committing the robbery. Bruce led the police to a cemetery where he
had ditched the black object, and the police recovered it as evidence.
During the early stages of the interrogation of Bruce Echols, before Bruce had
admitted to the robbery, the police obtained a warrant to search his home. The affidavit in
support of the search warrant was sworn out by Officer Patrick Baker, and it stated in relevant
part:
1. Affiant states that on September 6, 2012 at approximately 12:20 PM, the First
Security Bank located at 1401 Military Road in the City of Benton was robbed at
gunpoint by a white male subject wearing a camouflage t-shirt, blue jeans with a white
object hanging from the right rear pocket, brown shoes, a camouflage cap, and a black
mask, and carrying a tan satchel over his left arm. The subject brandished a handgun
and demanded money from the employees. Witnesses stated the subject fled into the
Hastings parking lot and drove away in a white or tan Hyundai Sonata.
2. Affiant states that on September 8, 2012 at approximately 1:30 PM, Bryant Police
Sgt. Nick Ramsey conducted a traffic stop on a white Hyundai Sonata after responding
to a suspicious person call at the AT&T store in Bryant at the Alcoa Exchange
shopping center. The employee informed officers that a person had been in the store
making large-cash purchases for two days in a row. The employee saw the subject in
a white Hyundai passenger car and thought it and the subject fit the description of the
person who robbed the First Security Bank in Benton.
3. Affiant states Sgt. Ramsey made contact with the driver of the car, Terry Echols.
Sgt. Ramsey stated [Terry] Echols was nervous and looked like the suspect seen on the
bank’s security footage. Sgt. Brian Bigelow of the Benton Police Department
responded and contacted Det. Brett Carpenter who was already in the area in an off-
duty capacity. Ramsey obtained consent to search the vehicle from [Terry] Echols and
in the trunk was located a pair of blue jeans with a white bag hanging out of the right
pocket, brown shoes similar to those seen on the video, and a dark colored mask.
4. Affiant states that [Terry] Echols was brought to the Benton Police Department for
questioning and the vehicle impounded. Sgt. Bigelow obtained a list of serial numbers
for the bait money taken during the robbery. One twenty dollar bill in [Terry] Echols
wallet was confirmed to be on the list.
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5. Affiant states Sgt. Bigelow returned to the AT&T store where they located the
deposit for September 7, 2012 and inside the deposit were four more twenty dollar
bills that match the serial numbers of the bait money taken during the robbery.
6. Affiant states that Det. Don Robertson of the Benton Police Department
interviewed Bruce Echols at the Benton Police Department on September 8, 2012.
Bruce Echols told Det. Robertson that his brother, Terry Echols, has been using his
car during the day recently and was using it on the day of the robbery. Bruce Echols
also indicated that he has no personal clothing in the vehicle. Bruce Echols stated he
took approximately $100 from Terry Echols’ wallet on Thursday night, September
6th, at approximately 8:30 PM.
7. Affiant states that he believes other moneys and other evidence associated with the
robbery are currently located inside the mobile home located at 3025 Highway 5
North, Lot #48, in the City of Benton, Saline County, Arkansas.
Pursuant to the warrant, Bruce’s mobile home was searched at 6:45 p.m. on September 8,
2012. During the search the police seized several items of contraband from Bruce’s bedroom,
including a First Security Bank bag and $8114 in cash, some of which was still in bands.
Bruce Echols was subsequently arrested and charged with four counts of aggravated
robbery. Prior to trial Bruce Echols filed a motion to suppress evidence, wherein he alleged
that his arrest was illegal, pretextual, and unsupported by probable cause.3 Bruce moved to
suppress all of the evidence obtained as a result of his allegedly unlawful arrest, including his
custodial statements, the fake gun, and the items seized from his residence pursuant to the
search warrant.
At the suppression hearing, Officer Brian Bigelow gave testimony about the traffic stop
of Terry Echols, which led the police to develop Bruce Echols as a suspect. Officer Bigelow
3
Bruce also raised various other arguments in his motion to suppress, all of which were
rejected by the trial court, but none of those arguments are at issue in this appeal.
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testified that he was familiar with Bruce Echols from past dealings, and that he knew there was
an active warrant out for him. According to Officer Bigelow, he had seen the arrest warrant
in the warrant cabinet on the day before Terry was stopped and Bruce was arrested. Officer
Bigelow went to Bruce’s home on September 8, 2012, informed Bruce that he had an arrest
warrant, and arrested him.4
On cross-examination, Officer Bigelow stated that he did not attempt to serve the
arrest warrant on the previous day because he was busy with another warrant. Officer
Bigelow further testified that he went to Bruce’s house to pick him up on the misdemeanor
warrant, but that he also knew Bruce was a robbery suspect at that point.
At the conclusion of the suppression hearing the trial court denied Bruce’s motion to
suppress. Bruce’s custodial confession and the physical evidence linking him to the crime
were introduced at the subsequent jury trial, and the jury found Bruce guilty of committing
the bank robbery.
The threshold issue in this case is whether the arrest of Bruce Echols was pretextual.
Bruce argues that it was and, that as a result of his pretextual arrest, the fruits of his arrest
should have been suppressed.
The seminal case on this issue is State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002),
which is cited in the appellant’s brief. In Sullivan, the supreme court held that under the
protections afforded by Article 2, section 15, of the Arkansas Constitution, pretextual
4
The arrest warrant was actually signed by another arresting officer that day, but this
fact is not material to our analysis.
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arrests—arrests that would not have occurred but for an ulterior investigative motive—are
unreasonable police conduct warranting application of the exclusionary rule. The police
officer in Sullivan suspected that the appellant was involved in narcotics, but had no probable
cause to arrest for any drug violation, and after conducting a traffic stop the officer arrested
the appellant for multiple minor offenses including speeding, failure to produce registration
and insurance, and possessing a weapon (a roofing hatchet). A subsequent inventory search
of the vehicle uncovered narcotics. The crucial question as announced by our supreme court
was whether the arresting officer would have effected the arrest but for his suspicion that
Sullivan was involved in narcotics. The trial court answered this question in the negative,
finding the arrest to be pretextual and suppressing the fruits of the arrest on that basis, and the
supreme court affirmed.
In the present case, Bruce Echols argues that he was arrested on the unrelated
misdemeanor warrant for the sole purpose of questioning him about the robbery. As such,
he contends that the police conduct was unreasonable and that the exclusionary rule applies.
Under the facts of this case the trial court found that Bruce’s arrest was not pretextual,
and on review we cannot say that this was error. In State v. Sullivan, 348 Ark. 647, 654, 74
S.W.3d 215, 220 (2002), the supreme court wrote:
Claims of pretextual arrest raise a unique problem in the law—deciding whether an
ulterior motive prompted an arrest which otherwise would not have occurred.
Confusion can be avoided by applying a “but for” approach, that is, would the arrest
not have occurred but for the other, typically the more serious, crime. Where the
police have a dual motive in making an arrest, what might be termed the covert
motive is not tainted by the overt motive, even though the covert motive may be
dominant, so long as the arrest would have been carried out had the covert motive
been absent.
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(quoting Hines v. State, 289 Ark. 50, 55, 709 S.W.2d 65, 68 (1986)). When testimony is
presented that an arrest on an unrelated warrant would have occurred in any event, no pretext
can be found. See Hines, supra; see also Stephens v. State, 342 Ark. 151, 28 S.W.3d 260 (2000)
(holding that there was no pretextual arrest when officers approached Stephens with an
outstanding arrest warrant).
In the case at bar, it is undisputed that Bruce Echols had an outstanding arrest warrant
for failure to appear on a second-degree terroristic threatening charge prior to the commission
of the bank robbery. Officer Bigelow observed this arrest warrant in the warrant cabinet on
the day before Bruce Echols was arrested. When questioned about why he did not serve the
warrant on the day he saw it in the cabinet, Officer Bigelow stated, “I did not have the ability
at that time” because he was busy getting another warrant for another officer to serve. When
asked whether he would have served the arrest warrant on Bruce Echols but for the fact that
he knew about the robbery, Officer Bigelow replied, “If I knew where he was, sure.” When
questioned further about what prompted him to arrest Bruce, Officer Bigelow testified,
“When I knew he was a person of interest, that’s one of the reasons I went to the house, yes,
and I knew we had a reason to pick him up anyway.” Officer Bigelow also stated, “I went
out there to pick him up on a warrant if we can make contact with him . . . [and] take him
down to detectives and allow them to speak with him about the robbery.”
Based on the totality of these circumstances, leaving credibility determinations to the
trial court and according due weight to inferences drawn by the trial court, we hold that
the trial court’s decision that the arrest was not pretextual was not clearly against the
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preponderance of the evidence. Based on the testimony of Officer Bigelow, the trial court
could reasonably conclude that, even had Bruce Echols not been suspected of the robbery,
he nonetheless would have been arrested on the outstanding misdemeanor warrant. Because
there was testimony from which the trial court could find that there was a dual motive in
making the arrest, we uphold its determination that the arrest did not amount to unreasonable
police conduct.
Bruce also argues that his arrest was illegal because the police lacked probable cause to
arrest him for the robbery. However, this argument presumes that his arrest was pretextual,
requiring the necessity for probable cause to arrest for the greater offense. See Romes v. State,
356 Ark. 26, 144 S.W.3d 750 (2004). Because we have held that Bruce’s arrest was not
pretextual and was premised on a valid misdemeanor arrest warrant, his arrest was lawful.
Bruce next argues that, as a result of him being illegally arrested, his ensuing custodial
confession should have been suppressed, as well as evidence of the fake gun that he showed
the police at the cemetery. This argument fails, however, because we have upheld the legality
of Bruce’s arrest. Where the tree is not poisonous, neither is the fruit. Criddle v. State, 338
Ark. 744, 1 S.W.3d 436 (1999).
Finally, Bruce argues that the affidavit that provided probable cause to search his home
was based in critical part on illegally obtained statements derived from his illegal detention,
and therefore that the evidence discovered under the search warrant falls under the
exclusionary rule. Bruce concedes in his argument that “probable cause no doubt existed for
a warrant to search the common areas of the house and Terry’s private room.” However,
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Bruce takes exception to the search warrant authorizing a search of the entire home, to
include his private room. Bruce asserts that the authority to search his room was based in
critical part on the statements he made to the police, contained in paragraph six of the
affidavit, that he had taken approximately $100 from Terry Echols’s wallet on September 6,
2012, at approximately 8:30 p.m. He argues that because this statement was elicited during
his illegal detention, there was no probable cause to search his room and the items found there
should have been suppressed.
In order for a search warrant to issue, evidence must be provided to show that the
contraband or evidence of a crime sought is likely to be in the place to be searched. Coggin
v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). In addition, the affidavit for search warrant
must set forth facts and circumstances establishing probable cause to believe that things subject
to seizure will be found in the place to be searched. Id.
In this case Bruce shared a house with his brother, Terry, who had been stopped by
the police in a car matching the description of the car used in the robbery. The police found
clothing used in the robbery, including a mask, in the trunk, and also recovered money stolen
from the bank on Terry’s person and at the store where he had recently made purchases. As
we have discussed previously, Bruce’s arrest was lawful and therefore, contrary to his
argument, any custodial statements he made to the police could lawfully be contained in the
affidavit supporting the probable cause for issuing the search warrant. The search warrant in
this case directed the police to search for, among other things, firearms, clothing, money,
money bands, and bank bags. After conducting our review, we are satisfied that the search
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warrant was issued upon probable cause that evidence of the robbery was likely to be found
in the mobile home shared by Bruce and his brother Terry, including both Bruce and Terry’s
bedrooms. Therefore, we uphold the trial court’s denial of the appellant’s motion to suppress
the items seized in the search as well.
Affirmed.
KINARD and GLOVER, JJ., agree.
The Burns Law Firm, PLLC, by: James D. Burns and Jack D. Burns, for appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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