Prosecutors on Friday asked Pulaski County Circuit Judge Herb Wright to reconsider his order barring them from using evidence obtained from the car used by slaying suspect Arron Lewis.
Authorities say they found strands of Beverly Carter's hair in the trunk of the black 2012 Ford Fusion that Lewis, 34, had been driving two days before the real estate agent's body was found in September 2014.
The petition states that prosecutors want an opportunity to show the judge that the evidence was legally collected.
Prosecutors announced the discovery of the hair at an evidentiary hearing last month but did not say how scientists at the state Crime Laboratory had determined it belonged to Carter.
Investigators say Carter's remains were found buried at the Cabot concrete plant where Lewis worked. Carter, 50, a married mother of three, had vanished after arranging to show a home in England to an unidentified client.
Lewis, who has admitted to abducting Carter for ransom, also is accused of killing her. His trial on capital-murder and kidnapping charges is scheduled to begin Jan. 12, with prosecutors seeking a life sentence.
His wife, Crystal Hope Lowery, 42, accepted a 30-year prison sentence and pleaded guilty to first-degree murder and kidnapping for her role in Carter's slaying. Her arrangement with prosecutors requires her to testify against her husband.
Friday's petition by chief deputy prosecutor John Johnson comes two days after Wright suppressed a significant portion of the evidence against Lewis, including secret recordings of Lewis being questioned about Carter's whereabouts after his arrest.
The judge also barred the admission of evidence from the Ford and from the search of Lewis' Jacksonville home, where deputies found Carter's cellphone on a dresser in Lewis' bedroom.
Wright said deputies had disregarded Lewis' constitutional rights when they searched his home and car and questioned him after he had asked for a lawyer.
But the judge also stated he would reconsider his decision about evidence found in the Ford if authorities could prove that it was collected by police in an "inventory search" before deputies obtained their "invalid" search warrant.
"If the state can show that any items found in the vehicle that they seek to introduce were discovered during an inventory search and not during the search pursuant to the illegal warrant, this court will consider admitting them into evidence," Wright wrote.
The requirements police must meet to conduct an inventory search are not as strict as those for a search for incriminating evidence, the judge noted, quoting the 15-year-old Arkansas Supreme Court case that describes the exemption to the requirement for a search warrant.
"Pursuant to this exception, police officers may conduct a warrantless inventory search of a vehicle that is being impounded in order to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger," says the ruling in Benson v. State, issued in 2000.
In the petition filed Friday, Johnson states that deputies had impounded the car after it crashed into a ditch.
Investigators had traced a phone used to contact Carter the night she disappeared to the residence that Lewis and Lowery shared, and had put the home under surveillance.
The Ford matched the description of a car seen at the England house the night Carter disappeared, and deputies were following the car when it crashed. Lewis was injured and taken to a hospital.
Deputies subsequently impounded the Ford and made arrangements to have it towed away. Sheriff's office policy requires deputies to check the trunk in an inventory search, according to the petition.
Johnson states that, following policy, the car was searched at the crash site, but the trunk was not immediately searched because "it was believed the trunk should be opened in a controlled environment."
Deputies then "suspended" their inventory search until the Ford could be towed to the sheriff's office bay, the petition states.
But before the inventory search continued, deputies obtained a search warrant for the car -- the warrant subsequently invalidated by the judge, according to the petition.
The prosecutor asks the judge to reconsider suppressing the car evidence because deputies would have found it through the inventory search even if they had not gotten a search warrant.
"The inventory search was interrupted by the search pursuant to the flawed search warrant," the prosecutor wrote. "However, the United States Supreme Court and the Arkansas Supreme Court have ruled that the inevitable discovery rule allows admission of evidence that would have inevitably been found by lawful means."
Metro on 12/12/2015