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                SUPREME COURT OF ARKANSAS
                                       No.   CR-14-934

STATE OF ARKANSAS                                 Opinion Delivered   May 28, 2015
                               APPELLANT
                                                  APPEAL FROM THE
V.                                                INDEPENDENCE COUNTY
                                                  CIRCUIT COURT
                                                  [NO. CR 2012-83-1]
CHRISTOPHER BRASHERS
                    APPELLEE                      HONORABLE JOHN DAN KEMP,
                                                  JUDGE

                                                  DISMISSED.


                                JIM HANNAH, Chief Justice


       The State of Arkansas appeals an order of the Independence County Circuit Court

granting a motion to suppress in favor of appellee Christopher Brashers. For reversal, the

State argues that the circuit court erred as a matter of law in interpreting Michigan v. Tyler,

436 U.S. 499 (1978), by resolving the issue of a warrantless search using agency principles and

in ruling that insurance investigators acted as agents of a law-enforcement agency. We hold

that this court lacks subject-matter jurisdiction because the circuit court’s order was a mixed

question of law and fact; accordingly, the correct and uniform administration of criminal law

does not require this court’s review pursuant to Arkansas Rule of Appellate

Procedure–Criminal 3(c) (2014). We dismiss the appeal.

       On June 20, 2011, at approximately 9:00 p.m. in Batesville, a fire destroyed a

commercial structure that housed three businesses. Those businesses were Pioneer Pizza,
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which was operated by Brashers; a dental office; and a pharmacy. According to the

testimony of John Brent Gleghorn, Batesville’s Fire Chief, and Randy Sharp, Deputy Sheriff

with the Independence County Sheriff’s Office, Batesville firefighters extinguished the fire,

but hot spots and steam remained the following day on June 21, 2011. The structure

sustained heavy damage. For public-safety reasons, firefighters and police officers secured the

scene. Firefighters salvaged items and overhauled the property throughout June 22, 2011.

       Officer Sharp testified that he took photographs, sketched diagrams of the three

businesses, and documented his findings at the scene. On June 23, 2011, Officer Sharp met

with fire investigators from insurance companies that held coverage on the three businesses.

The investigators inspected each building, determined that the fire originated in the middle

room of Pioneer Pizza, and removed debris and certain items, including an exhaust fan and

lights, from the scene.     As the investigators conducted their business, Officer Sharp

photographed their findings. Officer Sharp did not obtain a search warrant, nor did he have

Brashers’s consent to search his business. Officer Sharp testified that he worked the scene to

learn fire-investigation techniques and to determine the origin of the fire for the fire chief.

According to Officer Sharp’s testimony, the investigators found evidence of an accelerant on

the scene.

       On May 24, 2012, the State charged Brashers with one count of arson, a Class Y

felony, alleging that he had caused an explosion with the purpose of destroying or otherwise

damaging an occupiable structure and that the property sustained at least $100,000 in damage.

Subsequently, Brashers filed a motion to suppress the evidence seized in the warrantless


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search. In his motion to suppress, Brashers argued that law enforcement officers did not have

probable cause to search his burned building approximately three days after the fire without

a search warrant and that, pursuant to Tyler, 436 U.S. 499, the search was invalid. Brashers

alleged that Officer Sharp, as a State actor, made arrangements with third-party fire

investigators to meet at the scene, directed those investigators’ activities at the scene without

a warrant, investigated the scene without a warrant, supplied confidential information to the

investigators, and relayed findings from one investigator to the other investigators. Brashers

requested that the court grant the motion to suppress, exclude all evidence as the result of

the illegal search on June 23, 2011, and exclude subsequent items seized from the scene

pursuant to the fruit-of-the-poisonous-tree doctrine.

       Chief Gleghorn and Officer Sharp testified at the suppression hearing held on May

30, 2014, and June 16, 2014. Officer Sharp testified that he did not apply for a search

warrant to search the premises and that a deputy or firefighter maintained scene security

throughout the investigation. Officer Sharp also testified that when the investigators “pulled

the floor back, it was obvious there were burn patterns on the floor from [a] flammable

liquid.” During the court’s voir dire, Officer Sharp stated that three private fire investigators

called him on June 22, 2011, and met him at the scene the following day. Officer Sharp

testified that, when he was at the scene, he observed the investigators and took photographs

of their findings. Officer Sharp testified that the investigators gathered evidence and sent it

to an independent laboratory. At the conclusion of the hearing, the circuit court took the

matter under advisement.


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       By letter order dated August 6, 2014, the circuit court granted Brashers’s motion to

suppress the evidence obtained during the insurance-company investigation conducted on

June 23, 2011. The court found that “certain evidence and photographs” taken from the

burned premises during a warrantless search constituted governmental action in violation of

the Fourth Amendment. The court ruled that the facts supported a joint venture between

the investigators and the deputy and that the investigators became an arm or agent of the

law-enforcement agency. The court memorialized its findings in an order entered August

29, 2014. The State timely filed its notice of appeal on September 2, 2014. From the court’s

order granting the motion to suppress, the State now brings the instant interlocutory appeal.

       For its first point on appeal, the State argues that the circuit court erred as a matter of

law in its interpretation of Tyler, 436 U.S. 499, by inserting the question of agency into an

analysis of whether a warrant was required for entry into the fire-damaged building. The

State claims that no warrant was required. For its second point on appeal, the State contends

that the circuit court erred as a matter of law by ignoring the motives of the insurance

investigators by ruling that they had acted as agents of the Batesville law-enforcement agency.

       Before we address the merits of the State’s arguments, we must determine whether

this is a proper State appeal under Rule 3(c). We have stated the rule governing State appeals

as follows:

              Under Rule 3, the right of appeal by the State is limited. This court has
       consistently held that there is a significant difference between appeals brought
       by criminal defendants and those brought on behalf of the State. State v.
       Williams, 348 Ark. 585, 75 S.W.3d 684 (2002); State v. Pruitt, 347 Ark. 355,
       64 S.W.3d 255 (2002). The former is a matter of right, whereas the latter is
       neither a matter of right, nor derived from the Constitution, but rather is only

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       granted pursuant to the confines of Rule 3. Id. We accept appeals by the
       State when our holding would be important to the correct and uniform
       administration of the criminal law. State v. Warren, 345 Ark. 508, 49 S.W.3d
       103 (2001); State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000); State v.
       Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997). As a matter of practice, this
       court has only taken appeals “which are narrow in scope and involve the
       interpretation of law.” Id. at 595, 955 S.W.2d at 519 (quoting State v. Banks,
       322 Ark. 344, 345, 909 S.W.2d 634, 635 (1995)). We do not permit State
       appeals merely to demonstrate the fact that the trial court erred. Id.

              Thus, where an appeal does not present an issue of interpretation of the
       criminal rules with widespread ramifications, this court has held that such an
       appeal does not involve the correct and uniform administration of the law. Id.
       Similarly, where the resolution of the issue on appeal turns on the facts unique
       to the case or involves a mixed question of law and fact, the appeal is not one
       requiring interpretation of our criminal rules with widespread ramification, and
       the matter is not appealable by the State. Williams, 348 Ark. 585, 75 S.W.3d
       684; State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000). Finally, where an
       appeal raises an issue of the application, not interpretation, of a criminal rule
       or statutory provision, it does not involve the correct and uniform
       administration of the criminal law and is not appealable by the State under
       Rule 3. Id.

State v. Pittman, 360 Ark. 273, 275, 200 S.W.3d 893, 895–96 (2005) (citing State v. Markham,

359 Ark. 126, 127–28, 194 S.W.3d 765, 767–68 (2004)).

       In the case at bar, the circuit court acted within its discretion to make an evidentiary

decision after considering the particular facts and circumstances of this case. In its August 29,

2014 order, the circuit court stated that

       after a hearing was conducted on both of the above dates wherein the court
       took evidence, and after consideration of the evidence produced at the
       hearing, the documentary evidence consisting of photos and other reports, and
       from the statements and arguments of counsel, including the briefs submitted
       by both sides, the court finds . . . [t]hat [Brashers’s] motion to suppress all
       evidence obtained during the insurance company investigation on June 23,
       2011, is granted.



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Based on this language, the circuit court clearly based its decision on the specific facts of this

case in light of the applicable law.

       Further, the circuit court, in its order, quoted Tyler, 436 U.S. 499, 511–12, as follows:

               In summation, we hold that an entry to fight a fire requires no warrant,
       and that once in the building, officials may remain there for a reasonable time
       to investigate the cause of the blaze. Thereafter, additional entries to
       investigate the cause of the fire must be made pursuant to the warrant
       procedures governing administrative searches. Evidence of arson discovered
       in the course of investigations is admissible at trial, but if the investigating
       officers find probable cause to believe that arson has occurred and require
       further access to gather evidence for a possible prosecution, they may obtain
       a warrant only upon traditional showing of probable cause applicable to
       searches for evidence of the crime.

The circuit court then found that “the facts herein clearly support a conclusion of a joint

venture between the insurance company’s investigator and the Independence County

Sheriff’s deputy.” The court ruled that the “insurance company investigator became an arm

or agent of the law enforcement agency.” While the State takes issue with the circuit court’s

interpretation of the Tyler case and its ruling that “Officer Sharp actively participated in the

insurance company investigation, lending support to a conclusion of a joint endeavor[,]” we

conclude that the circuit court based its decision, particularly Officer Sharp’s involvement

in the investigation, on the unique facts presented in this suppression case. Thus, we hold

that the State’s appeal does not involve the interpretation of the law or the uniform

administration of justice, as required by Rule 3(c). Accordingly, we dismiss this appeal.

       Dismissed.

       HART, J., concurs.



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       JOSEPHINE LINKER HART , Justice, concurring. I agree that this case must be

dismissed, but I disagree with the majority’s reasoning regarding the State’s first point on

appeal. The issue before us is not whether a police officer following a private insurance

investigator into a building destroyed by fire obviated the Fourth Amendment warrant

requirement. The State’s argument is that the circuit court’s analysis of the situation was

flawed because, rather than first considering whether Brashers had a reasonable expectation

of privacy in his fire-damaged business three days after the fire, the circuit court “prematurely

interjected” the question of agency. Although the State did not submit a written brief to the

circuit court, it did make this argument.

       I am mindful that appeals by the State are limited to situations in which this court’s

holding would be important to the correct and uniform administration of the criminal law.

State v. Crane, 2014 Ark. 443, 446 S.W.3d 182. The correct and uniform administration of

the criminal law is the circumstance in which the issue presented is solely a question of law

and is independent of the facts in the case. Id. In my view, the case before us is exactly the

type of appeal by the State that we should accept. The issue is whether the circuit court asked

the correct question, not whether it came up with the correct answer.

       Nonetheless, this case must be dismissed because the State failed to get a ruling on its

reasonable-expectation-of-privacy argument. Failure to obtain a ruling on an issue at the trial

level precludes review on appeal. Maiden v. State, 2014 Ark. 294, 438 S.W.3d 263. This

court does not “assume” that an argument has been ruled on simply because a circuit court

states that it considered all arguments. TEMCO Const., LLC v. Gann, 2013 Ark. 202, 427


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S.W.3d 651. Moreover, a detailed ruling on a different argument does not constitute a ruling

by implication so as to preserve an issue for appeal. Arkansas Lottery Com’n v. Alpha Marketing,

2012 Ark. 23, 386 S.W.3d 400.

       Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellant.

       John O. Russo, for appellee.




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