State v. Earl

Appellee Hezile Earl, Jr., seeks the recall of this court's mandate issued on November 10, 1998, and bases his motion on the Supreme Court's recent decision in Knowles v. Iowa, No. 97-7597 (U.S. Sup.Ct. Dec. 8, 1998). There, the Supreme Court held that a search incident to a traffic violation conducted pursuant to Iowa Code Ann. § 805.1(4) violated the Fourth Amendment. While § 805.1(4) is similar or equivalent to our Ark. R. Crim. P. 5.5, which was in issue in Earl's case here, Earl, unlike the defendant in Knowles, did not challenge Rule 5.5's constitutionality. See State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998). 1 In fact, this court emphasized this point, stating the following: We are aware the American Bar Association has recommended that Rule 5.5 and similar rules employed in other [336 Ark Page 272] jurisdictions not be used due to questions pertaining to its constitutional validity. However, Rule 5.5's constitutionality is not before us.