Cite as 2016 Ark. App. 192

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ARKANSAS COURT OF APPEALS

DIVISION I 

No. CR-15-733

MARCUS O. MILLSAP 

APPELLANT

V.

STATE OF ARKANSAS 

APPELLEE

Opinion Delivered April 6, 2016

APPEAL FROM THE POPE COUNTY

CIRCUIT COURT

[NO. CR-2014-207] 

HONORABLE WILLIAM M. 

PEARSON, JUDGE

AFFIRMED

BRANDON J. HARRISON, Judge

Marcus Millsap entered a conditional plea of no contest to delivery of a controlled 

substance and possession with the purpose to deliver, and he now appeals, arguing that the 

circuit court erred in denying his motion to suppress. We affirm.

I. Facts 

On 1 May 2014, agents working with the Fifth Judicial Drug Task Force (DTF) 

met with a confidential informant to set up a controlled purchase of methamphetamine 

from Millsap. In the early morning hours of May 2, after the purchase had been

completed, officers initiated a traffic stop of Millsap and arrested him. In June 2014, 

Millsap was charged with delivery of methamphetamine, possession with the purpose to 

deliver, and possession of a controlled substance. 

On 8 April 2015, Millsap filed a motion to suppress any and all evidence seized 

after the warrantless traffic stop and his arrest, asserting that there was no probable cause to 
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stop his vehicle. On 23 April 2015, Millsap amended his motion to suppress to include 

his custodial statement made after his arrest. He argued that he had asked that the 

recording of his interview be stopped and had asserted his Miranda rights, but the State 

violated Ark. R. Crim. P. 4.7 (2014) when it failed to preserve, on audio/visual 

equipment, the part of the interview when he verbally invoked his Miranda rights during 

the interview. Rule 4.7 governs the recording of custodial interrogations. 

The circuit court held a suppression hearing on 4 May 2015. Tony Haley, a 

narcotics investigator with the Arkansas State Police, testified that on 1 May 2014, he used 

confidential informant Bruce Hurley to make a controlled buy of methamphetamine. He 

explained that he had known Hurley for approximately ten years, that Hurley had an 

extensive criminal history, and that in exchange for assisting the police, Hurley would not 

be charged with two counts of delivery of methamphetamine. Haley testified that he had 

been familiar with Millsap for five or six years and that Hurley was supposed to purchase 

four ounces of methamphetamine from Millsap for $3600. Haley explained that the 

transaction was scheduled to occur at Hurley’s residence on 1 May 2014 and that on the 

afternoon of May 1, he met with Hurley at his residence, searched Hurley’s person and 

residence for controlled substances and found none, and then listened to Hurley make 

telephone contact with Millsap. Once Millsap was on his way to the residence, Haley 

equipped Hurley with an electronic-monitoring device, set up a video recorder inside 

Hurley’s residence, and gave Hurley $3600 in buy money. Haley then hid in an 

abandoned car in the front yard and observed the residence. 
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Haley watched Millsap and a female, identified as Christy Hamilton, arrive at 

Hurley’s residence. Haley stated that Millsap and Hamilton were in the residence less than 

thirty minutes, and then they, along with Hurley, left in Millsap’s vehicle. Hurley texted 

Haley and told him that the deal had not yet taken place and that they were going down 

the road to look at a trailer house that Millsap was interested in buying. After 

approximately one hour, the three of them returned and went back into Hurley’s 

residence. After another hour, Millsap and Hamilton left the residence. Haley then 

entered the residence, confirmed with Hurley that the purchase had taken place, and 

retrieved approximately two ounces of methamphetamine from Hurley. Haley then gave 

the order to nearby officers to stop Millsap’s vehicle and arrest him. Other officers picked 

up Haley, and they proceeded to the Russellville DTF office. Haley testified that he 

arrived at the office at approximately 1:15 a.m. on May 2; Deputy Noyes with the Pope 

County Sheriff’s Office brought Millsap in and escorted him to an interview room soon 

after. 

Haley stated that Millsap was in the interview room approximately five minutes 

before he and Agent Chad Stephenson went into the room. Haley said that he told 

Millsap what he was charged with and that the officers wanted to speak to him, and that 

he advised Millsap of his Miranda rights. Haley explained that he read the Miranda-rights 

form to Millsap and that Millsap acknowledged and understood his rights. Millsap 

initialed the Miranda-rights form and signed a waiver of rights, which was introduced as 

State’s Exhibit 1. Haley stated that the interview room was set up so that interviews are 

recorded and that the recorder was on that night. The recording system had only been 
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operational for a couple of months, and only a few interviews had been conducted since 

the recording system’s installation. Haley explained that after Millsap had signed the 

Miranda waiver of rights, he asked if the interview was being recorded, and Haley 

confirmed that it was. According to Haley, Millsap then stated, “If you will turn it off, I 

will talk to you.” Haley asked Agent Stephenson to turn off the recorder, which he did, 

and Haley then proceeded to question Millsap about the drugs that had been found in his 

vehicle. Haley said that Millsap took ownership of the drugs and said that he was selling 

drugs “to support [his] habit.” Millsap then told Haley about other individuals from 

whom Millsap could purchase a large amount of methamphetamine. 

Haley stated that Millsap was forty-eight years old, very intelligent, and familiar 

with the legal system. He explained that Millsap had previous convictions for possession 

of a controlled substance, delivery of a controlled substance, drug paraphernalia, and 

retaliation against a witness. Haley denied making any threats or promises to Millsap. 

Haley also explained that in preparing this case for prosecution, he attempted to 

recover the recording of Millsap’s interview, up to the point where he asked that the 

recorder be turned off, but the recording was not there. On cross-examination, he 

confirmed that all verbal communications between himself and Millsap, including his 

explanation of Millsap’s Miranda rights and Millsap’s request to turn off the recorder, had 

been erased. He also testified that he was aware that Hamilton was Hurley’s ex-wife. 

Haley explained that Hurley was not a “good citizen” but that was why he took steps to 

eliminate the opportunity for Hurley to lie to him. In response to the question of 

whether Hurley might have motive to set up Millsap, Haley stated, “Anything is 
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possible.” He also explained that the video recorder inside Hurley’s residence did not 

function properly and acknowledged that he could not see what had occurred inside the 

residence. He also acknowledged that in the audio recording of the controlled buy, the 

words “drugs” or “controlled substances” are not used and that when Millsap says he will 

have to meet Hurley in Little Rock later “to get the other two,” he does not identify

what he is talking about. Haley agreed that he relied on Hurley. 

Jeffrey Noyes, a patrol division supervisor for the Pope County Sheriff’s Office, 

testified that on May 1, 2014, he assisted the DTF by stopping a vehicle for them. He 

explained that shortly before 1:00 a.m. on May 2, DTF officers called him and gave him a 

description of Millsap’s car. Noyes located the vehicle a short time later and arrested 

Millsap, who was driving the car. Noyes searched Millsap and found a large amount of 

currency, roughly $3700, and a small plastic bag containing what Noyes believed to be 

methamphetamine. Noyes transported Millsap to the DTF office and placed him in an 

interview room. 

David Davis, a coordinator for the DTF, testified that he participated in the search 

of Millsap’s car after his arrest. He testified that between the passenger seat and the 

console, he found a black bag containing two ziploc baggies of what he believed to be 

methamphetamine and a large amount of cash. He stated that the money found in the 

black bag matched the money that was given to the informant for the controlled buy, and 

the bag contained about three ounces of methamphetamine. Davis explained that as the 

DTF coordinator, he was responsible for the recording equipment in the interview room. 

Davis said that he thought the recordings would be kept until the hard drive was full, 
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which would take months, but after the recording in this case could not be retrieved, he 

learned that recordings were only kept for a thirty-day period and then deleted. He said 

that he had since taken steps to rectify the situation. 

Chad Stephenson, an officer with the Pope County Sheriff’s Office who is assigned 

to the DTF, testified that he participated in the interview with Millsap on May 2, that 

Haley advised Millsap of his Miranda rights, and that Millsap asked them to shut off the 

recording device. Stephenson explained that he left the room to shut off the recorder and 

then returned to the interview room, where Millsap said that the drugs in the car 

belonged to him and told officers of other people from whom he could buy 

methamphetamine. 

Millsap testified too. He said that when he was stopped, he did not understand that 

he was arrested, only that he was wanted for questioning. He testified that Deputy Noyes 

took him to the DTF office, and he agreed that he asked the officers to turn off the 

recording of the interview. Millsap agreed that it was his understanding that whatever he 

said would not be used against him, and he also agreed that he invoked his right to 

counsel. The officers, according to Millsap, continued to talk to him, just “casual 

conversation,” after he asked for an attorney. On cross-examination, he agreed that no 

threats had been made against him, that he was familiar with the Miranda rights, and that 

those rights had been given to him in this case. He also stated that he invoked his right to 

an attorney after he had asked the officers to turn off the recording. When asked why he 

did not invoke his right to an attorney while the recording was still on, Millsap said that 

he “was in a very nervous situation.” And he repeated that any questions the police asked 
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after he had requested an attorney were “just conversation” and that he “didn’t consider it 

questioning.” On redirect, Millsap reiterated that he did not believe that what he said to 

the police would be used against him because it was “off the record.” 

Tony Haley was recalled and testified that Millsap did not request an attorney at 

any time during the interview. 

In closing arguments, the defense argued that there was no showing of reliability of 

the informant and that the stop was not based on probable cause. The defense also argued 

that the State had a duty to preserve any recording under Ark. R. Crim. P. 4.7. 

From the bench, the court made the following findings. First, it found that “there 

was reasonable suspicion to believe that a felony had taken place. Thus there was 

authority to arrest without a warrant based on the facts of the controlled buy.” Second, 

the court declined to read Rule 4.7 as a rule requiring automatic exclusion if there is a 

failure to preserve a recording. The court found that Davis gave a “satisfactory 

explanation” of why the recording was deleted and that there was no bad faith on the part 

of the police. And finally, the court found that whether Millsap invoked his right to 

counsel was “purely a credibility issue,” which the court resolved in favor of the State. It 

stated, 

I’m going to find that he did not, and I credit the testimony of Officer 

Stephenson and Officer Haley the best evidence of that. While you don’t 

have a recording, which you didn’t need one because Mr. Millsap testified 

all that occurred—supposedly occurred after the recording was turned off. 

The Miranda rights form is the best evidence, along—coupled with Mr. 

Millsap’s familiarity with the Miranda warnings through his previous criminal 

history and the fact that he would be advised of his Miranda rights and 

understand his Miranda rights and then get the recorder turned off, which 

they complied with his request, and then he invoked counsel just doesn’t 
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make sense. It seems to me a person would invoke counsel while the 

recorder was on to preserve that important right. 

The motion to suppress was therefore denied. 

Following this ruling, Millsap entered a conditonal plea of no contest to delivery of 

a controlled substance and possession with purpose to deliver and was sentenced to ten 

years’ imprisonment on each count, to run consecutively. (The possession charge was

nolle prossed.) Millsap has now appealed, arguing that the circuit court erred in denying 

his motion to suppress. 

II. Standard of Review

When reviewing a circuit court’s denial of a motion to suppress evidence, the 

appellate 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 the inferences 

drawn by the circuit court. Pickering v. State, 2012 Ark. 280, 412 S.W.3d 143. A finding 

is clearly erroneous, even if there is evidence to support it, when the appellate court, after 

reviewing the entire evidence, is left with the definite and firm conviction that a mistake 

has been made. Id. We defer to the circuit court’s superior position in determining the 

credibility of the witnesses and resolving any conflicts in the testimony. Id. 

III. Suppression of Evidence From the Traffic Stop 

An officer may stop a vehicle and make a warrantless search if it is on a public 

highway, and he or she has reasonable cause to believe the vehicle contains evidence 

subject to seizure, and the circumstances require immediate action to prevent destruction 

or removal of the evidence. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989). 
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Reasonable cause as required by Ark. R. Crim. P. 14.1 exists when the officers have 

reasonably trustworthy information, which must be more than mere suspicion, that the 

stopped vehicle contains evidence subject to seizure and a person of reasonable caution 

would be justified in believing an offense has been committed or is being committed. Id. 

The test for reasonable cause for stopping and searching a vehicle depends on the 

collective information of the police officers and not solely on the knowledge of the officer 

stopping the vehicle. Id. 

Millsap argues here, as he did below, that the warrantless traffic stop lacked 

probable cause. He asserts that the State failed to establish the reliability of the informant, 

citing Hurley’s criminal history and the circumstances of the controlled buy as described 

by Haley. Millsap specifically contends that Haley “admitted that he had to rely upon 

hearsay of the unreliable informant to know whether a controlled buy had occurred and 

to order the stop of the vehicle.”

Millsap compares this case to Jones v. State, 2011 Ark. App. 683, in which this court 

affirmed the denial of a motion to suppress under similar facts. In Jones, police officers set 

up a controlled buy between the informant and a person named Latisha Longnecker. 

Officers watched the informant enter an apartment; Longnecker enter the apartment; 

Longnecker exit the apartment and get into the passenger seat of a white Mitsubishi driven 

by Jones (who was previously identified by the informant as “the dope guy”); Longnecker 

reenter the apartment; and the informant exit the apartment and present a small bag of an 

off-white, rock-like substance, later identified as cocaine, to the officers. Jones argued that 

because the police did not testify that the informant was reliable, they were “relying on 
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the hearsay of an unproven person to use as a basis for the stop.” Id. at 3. In affirming, this 

court explained, 

Here, the officers observed the controlled buy visually to the extent possible 

and also listened to the conversation between the informant and 

Longnecker. Based on their observations, they knew that Longnecker did 

not have the drugs when the informant first arrived. After going out to the 

white Mitsubishi, however, she returned with what she represented to be 

drugs. Based on the officers’ own observations, it was reasonable to 

conclude that the Mitsubishi driver was involved in the drug transaction. 

Therefore, probable cause existed regardless of the informant’s reliability. 

Id. at 4–5. Millsap argues that Jones is distinguishable from the present case because “Haley 

admits that he could not observe the transaction” and “the informant had plenty of 

opportunity to retrieve [the] controlled substance, and put money in the Appellant’s 

vehicle other than from the Appellant.” 

We are not persuaded that Jones is distinguishable in a meaningful way. In Jones, 

the officers could not see an exchange of contraband between Jones and Longnecker or 

Longnecker and the informant, but we concluded that from the totality of the 

circumstances, including the officers’ observation, the audio of the conversation between 

the informant and Longnecker, and the informant’s possession of drugs immediately after 

the transaction, that the stop of Jones’s car was supported by probable cause. The same 

analysis applies here: Haley did not actually see the purchase of methamphetamine that 

took place inside Hurley’s residence; but based on the totality of the circumstances, 

including Haley’s observation of Millsap’s arrival and departure, the audio of the 

conversation between Hurley and Millsap, and Hurley’s possession of methamphetamine 

immediately after his interaction with Millsap, we hold that probable cause existed to 

justify the warrantless stop and arrest of Millsap, regardless of the informant’s reliability. 
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IV. Suppression of the Custodial Statement

A statement made while in custody is presumptively involuntary, and the burden is 

on the State to prove by a preponderance of the evidence that a custodial statement was 

given voluntarily and was knowingly and intelligently made. See Grillot v. State, 353 Ark. 

294, 107 S.W.3d 136 (2003). To determine whether a waiver of Miranda rights is 

voluntary, this court looks to see if the confession was the product of free and deliberate 

choice rather than intimidation, coercion, or deception. See id. 

For his first argument under this point, Millsap appears to argue that the officers 

employed some type of deception in obtaining his statement. He states that he knew 

Haley “from [a] previous relationship” and that “he trusted Haley when Haley promised 

him that he could talk off the record and that his statement would not be used against 

him.” But Millsap never made this argument to the circuit court. Arguments not raised 

below are waived, and parties cannot change the grounds for an objection on appeal but 

are bound by the scope and nature of the objections and arguments made at trial. See 

Abshure v. State, 79 Ark. App. 317, 87 S.W.3d 822 (2002).1

 

Millsap also argues that the circuit court should have suppressed the use of his 

custodial statement due to the State’s failure to comply with Rule 4.7 of the Arkansas 

Rules of Criminal Procedure. Rule 4.7 provides that, whenever practical, a custodial 

interrogation should be electronically recorded. Ark. R. Crim. P. 4.7(a). The rule also 

 

1

 The record reveals that Millsap never testified that Haley made any promises to 

him and specifically never testified that Haley promised his statement would be “off the 

record” and not used against him. Millsap only agreed during direct examination that it

was his “understanding” that whatever he said would not be used against him. 
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provides that in determining the admissibility of any custodial statement, the court may 

consider, together with all other relevant evidence and consistent with existing law, 

whether an electronic recording was made, or if not, why an electronic recording was not 

made. Ark. R. Crim. P. 4.7(b)(1). However, 

(2) The lack of a recording shall not be considered in determining the 

admissibility of a custodial statement in the following circumstances:

. . . . 

(F) a statement made during a custodial interrogation by a suspect who 

requests, prior to making the statement, to respond to the interrogator’s 

questions only if an electronic recording is not made of the statement, 

provided that an electronic recording is made of the statement of agreeing to 

respond to the interrogator’s question, only if a recording is not made of the 

statement[.]

Ark. R. Crim. P. 4.7(b). Finally, the rule dictates that an electronic recording must be 

preserved until the later of (1) the date on which the defendant’s conviction for any 

offense relating to the statement is final and all direct and postconviction proceedings are 

exhausted, or (2) the date on which the prosecution for all offenses relating to the 

statement is barred by law. Ark. R. Crim. P. 4.7(c). 

 Millsap agrees that there is no dispute that he asked for the recording to be turned 

off. He does argue, however, that under Rule 4.7(c), the State had a duty to preserve the 

recording that was made until the time he asked for it to be stopped, and because that was 

not done, his custodial statement (made after the recording had been stopped) should have 

been suppressed. 

We disagree. Rule 4.7 does not require automatic exclusion, and subsection 

(b)(2)(F) clearly states that the lack of a recording is not considered in determining the 

admissibility of a custodial statement if the person interviewed asked for the recording to 
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be stopped, which is what happened here. We affirm the circuit court’s denial of the 

motion to suppress. 

 Affirmed. 

 GLADWIN, C.J., and WHITEAKER, J., agree. 

Laws Law Firm, P.A., by: Hugh R. Laws, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.