Duke v. State

2016 Ark. App. 402

• Court: Court of Appeals of Arkansas
• Decided: September 14, 2016
• Docket: CR-16-34
• Status: Published

Opinion

Cite as 2016 Ark. App. 402

ARKANSAS COURT OF APPEALS DIVISION IV No. CR-16-34

Opinion Delivered September 14, 2016 BARRY DUKE APPELLANT APPEAL FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CR-15-161] V. HONORABLE BILL PEARSON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Barry Duke appeals from his conditional plea of guilty to a charge of

possession of marijuana with intent to deliver. His plea was conditioned upon an appeal

challenging the circuit court’s denial of his motion to suppress evidence seized during a traffic

stop. We affirm.

In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct 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 inferences drawn by the circuit court and proper

deference to the circuit court’s findings. Johnson v. State, 2015 Ark. 387, 472 S.W.3d 486. We

reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence.

Id. With these standards in mind, we turn our attention to the evidence before the circuit

court. Cite as 2016 Ark. App. 402

In March 2015, Arkansas State Trooper Chris Goodman initiated a traffic stop of a

truck for speeding. Trooper Goodman observed the truck overtaking and passing other

vehicles, and radar indicated the truck was traveling 74 miles per hour in a 70 mile-per-hour

zone. Duke was the operator of the truck.

Trooper Goodman approached the vehicle on the passenger side. Duke rolled the

passenger-side window halfway down to speak with Trooper Goodman. When he did so,

Trooper Goodman smelled an odor of burnt marijuana emanating from the vehicle. Trooper

Goodman also noticed that Duke was “really, really fidgety” like he was under the influence

of a stimulant.

Trooper Goodman asked Duke for his license and registration. Duke indicated that his

license was in a bag located in the bed of the truck. While Duke was in the process of

retrieving his license, Trooper Goodman asked if Duke had weapons or anything illegal in his

truck. Duke indicated he did not. When Trooper Goodman asked for consent to search the

vehicle, Duke refused. At that point, Trooper Goodman requested the assistance of Trooper

Chase Melder and his drug dog.

The drug dog alerted on the vehicle. Trooper Goodman inspected the vehicle and

noticed that the secondary gas tank had been tampered with. The truck was then taken to

the police station where a more thorough search was conducted. During the search, Officers

found a bag containing ten pills (Adderall and Xanax) in the cab of the vehicle and discovered

seventeen pounds of marijuana in the secondary gas tank under the vehicle.

2 Cite as 2016 Ark. App. 402

Duke was subsequently charged with possession of marijuana with intent to deliver.1

Prior to trial, Duke moved to suppress the evidence, claiming that Trooper Goodman (1)

lacked probable cause to initiate the traffic stop and (2) improperly prolonged the traffic stop

without reasonable suspicion for the purpose of conducting a dog sniff. A hearing on the

motion to suppress was held, wherein the above-referenced evidence was presented to the

trial court. The trial court denied Duke’s motion to suppress, finding that Trooper

Goodman’s detention of Duke to conduct the dog sniff was supported by individualized

suspicion.

Duke appeals the trial court’s denial of the motion to suppress, arguing that Trooper

Goodman lacked reasonable suspicion for the prolonged detention necessary to conduct the

dog sniff of his vehicle. More specifically, he argues that the routine tasks associated with the

traffic stop for speeding had been completed prior to the dog sniff, that Trooper Goodman

articulated his claim of smelling burnt marijuana only after Duke had refused to consent to

a search of the vehicle, and that, based on the totality of the circumstances, Trooper

Goodman’s claim was not credible and was simply an attempt to justify Duke’s continued

detention.

We begin our analysis by noting that the initial stop was legal, and Duke does not

appear to contest that issue on appeal. Trooper Goodman testified that Duke was traveling

74 miles per hour in a 70 mile-per-hour zone. See Ark. Code Ann. § 27-51-201 (Repl. 2010).

The legality of the stop, accordingly, is not an issue in this appeal.

1 He was not charged with possession of the Xanax or Adderall, nor was a speeding ticket ever issued.

3 Cite as 2016 Ark. App. 402

What is at issue is whether the reasonable, articulable suspicion was actually developed

before the legitimate purpose of the stop had been completed or whether it was fabricated to

justify the stop. Trooper Goodman testified that he smelled an odor of burnt marijuana when

he first approached the vehicle. Duke asserts that Trooper Goodman’s testimony simply was

not credible. Duke points to several facts to support his argument: (1) that while Trooper

Goodman testified that he smelled an odor of burnt marijuana, no evidence of

marijuana—burnt or unburnt—was found in the cab of the truck where the odor allegedly

emanated; (2) that Trooper Goodman testified that burnt and unburnt marijuana have

different odors; and (3) that the recovered marijuana was unburnt. Duke is essentially asking

that this court substitute its credibility determination for that of the circuit court. We deny

this request. Here, the trial court found the testimony of the trooper credible, and we defer

to the superiority of the circuit court to evaluate the credibility of witnesses who testify at a

suppression hearing. See Medlock v. State, 2016 Ark. App. 282, at 9.

For the foregoing reasons, we affirm.

KINARD and HIXSON, JJ., agree.

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

Leslie Rutledge, Att’y Gen., by: Brooke Jackson, Ass’t Att’y Gen., for appellee.