DRUG CASE OVERTURNED ON APPEAL

The state Court of Appeals on Wednesday overturned a judge's refusal to
suppress items seized from a man's home in a warrantless search after a
woman pulled out a tray of marijuana in response to a policeman asking,
"Where's the marijuana?"

In a 3-2 decision, the court sent the case of Perry Burton Holmes back to
Faulkner County Circuit Judge David L. Reynolds, who had denied Holmes'
motion to suppress the marijuana and related items. Holmes had entered a
conditional guilty plea and was sentenced to five years' probation for
possession of methamphetamine, drug paraphernalia and marijuana.

On Holmes' motion to suppress, Reynolds found that police officers were
justified in entering Holmes' house to ensure their safety in light of the
fact that David Ellis, a visitor to the house, was reported to have a gun.

According to court records, Officer Keith Srite had stopped at the home to
investigate a call that Ellis had a gun and possibly was violating a
no-contact order. Ellis and Holmes came out of the home. Srite did a
pat-down search of Ellis. More officers arrived, and Srite told them to
take Ellis and Holmes to separate police vehicles to talk.

Srite noticed that Rose Beth Allen was inside the house and had come to the
door. Srite told her he needed to talk to her.

The appeals court said Srite said Allen opened the door without making any
comment, and he smelled marijuana after entering the home. He asked,
"Where's the marijuana?" Srite said she pulled out a tray of marijuana and
other drug materials.

Allen said she didn't live in the house but Holmes did and that the
marijuana was his, Srite said. Srite then went out and advised Holmes of
his rights and obtained written consent from Holmes to search his home.

The officers seized butts of smoked marijuana cigarettes, marijuana seeds,
other materials and a small amount of suspected methamphetamine.

Judge Josephine Linker Hart, who wrote the opinion, said that what Allen
intended is unclear because Srite testified he did not solicit Allen's
consent to enter Holmes' home and Allen didn't give him verbal permission
to enter the house.

"Was she inviting the officer inside [Holmes'] home, or was she reacting to
the command of a law enforcement officer who may have drawn his weapon and
was accompanied by at least two other officers who had already taken away
the person who resided in the house?" Hart asked.

Hart said the court concluded Srite operated beyond established parameters.

Judges Karen Baker, Olly Neal, Jr., and Andree L. Roaf agreed. Judges Sam
Bird and Larry Vaught dissented.