Three judges on the Arkansas Court of Appeals castigated law enforcement officials in Faulkner County on Wednesday over a 2018 police search that netted several criminal charges against a registered sex offender, including a conviction that the judges tossed on appeal.
The decision handed down by the judges overturned Rufus Virgil's five-year sentence for failing to properly register as a sex offender. His case was remanded back to the circuit court.
"This case is equal parts disappointment and curiosity given the rule of state constitutional law the Arkansas Supreme Court so well pronounced sixteen years ago in Brown--a decision that could not be more on point if it were an angel dancing on the head of a pin," Court of Appeals Judge Brandon Harrison wrote on behalf of the unanimous three-judge panel.
Harrison was referring to State v. Brown, a 2004 case in which the Arkansas Supreme Court held that police carrying out "knock-and-talk" tactics must inform a person that he can refuse to consent to a search before allowing officers into the person's home.
In Virgil's case, officers with the Conway Police Department went to his girlfriend's apartment on Westlake Drive in January 2018, knocked on her door and immediately asked her to let them inside to talk, leaving the girlfriend with a "split-second decision," according to Harrison's opinion.
Once inside, officers said that they smelled marijuana and obtained the girlfriend's permission to search the apartment, where they found some of Virgil's clothes, letters, marijuana and a pistol, according to court records.
Virgil, who was not in the apartment at the time of the search, was charged with numerous drug and firearms crimes, as well as with failing to comply with sex-offender registration and reporting requirements.
At a hearing before his trial, Virgil and his public defenders stipulated to the fact that he was living at the Westlake Drive apartment -- which was not the address under which Virgil had registered as a sex offender -- in order to have standing to challenge the search of the apartment.
Later, at a trial over his failure-to-register charge, prosecutors pointed to Virgil's stipulation as proof that he had violated the terms of his sex-offender status, over the objections of Virgil's attorneys. A Faulkner County jury convicted Virgil in March 2019, and sentenced him to five years in prison. (The remaining drug and firearms charges against Virgil were severed for a separate trial, and remain pending.)
The Appeals Court judges, in overturning the conviction, found that a defendant "cannot be forced to forfeit his Fifth Amendment right to avoid self-incrimination while also pursuing the Fourth Amendment right to be free from an illegal search and seizure."
Responding to the Court of Appeals' decision on Wednesday, Virgil's public defenders said the wording of the court's opinion made clear that the search had been illegal, and faulted prosecutors for trying to uphold officers' actions.
"Mr. Virgil should have gotten a fair shot the first time around," said Charles Hancock, one of his attorneys. "That didn't happen and I think the Court of Appeals recognized that."
The prosecuting attorney for the 20th Judicial District, Carol Crews, said, however, that the Court of Appeals had provided new "guidance" for prosecutors. She said her office will review the opinion and determine whether to retry the case.
"We make our arguments and present our facts to the court and wait for a ruling," Crews said of the defense attorneys' criticism.
Attorney General Leslie Rutledge, whose office defended the conviction on appeal, said through a spokeswoman Wednesday that she was "disappointed" in the decision and reviewing her options.
The remaining charges against Virgil -- which carry the possibility of a life term -- will be evaluated by prosecutors to determine whether to continue pursuing them, Crews said.
Hancock, Virgil's attorney, said he expected the charges to be dropped.
Metro on 05/22/2020
Print Headline: Conviction tossed over illegal search