Frette v. State

947 S.W.2d 15, 58 Ark. App. 81, 1997 Ark. App. LEXIS 513
CourtCourt of Appeals of Arkansas
DecidedJune 18, 1997
DocketCA CR 96-477
StatusPublished
Cited by6 cases

This text of 947 S.W.2d 15 (Frette v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frette v. State, 947 S.W.2d 15, 58 Ark. App. 81, 1997 Ark. App. LEXIS 513 (Ark. Ct. App. 1997).

Opinions

John Mauzy Pittman, Judge.

Paul Frette was charged with violating Ark. Code Ann. § 27-23-113 (Supp. 1993), which prohibits a person from operating or being in physical control of a commercial motor vehicle while having alcohol in his system. His pretrial motion to suppress evidence obtained as a result of his arrest was denied. Pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, he entered a conditional guilty plea to the charge, reserving the right to appeal the denial of his motion to suppress. He was fined $250.00, plus costs, and his driver’s license was suspended for 120 days. Our review of the record requires us to conclude that his motion to suppress should have been granted; therefore, we reverse to permit appellant to withdraw his guilty plea as provided for in Rule 24.3(b).

Appellant was arrested on June 15, 1995, based on information provided by a tip called in to the dispatch office of the Spr-ingdale Police Department by a person identifying himself as Jerry Smith, a truck driver from Jonesboro, Georgia. Smith reported that he had seen an older man drinking beer while seated behind the wheel in the cab of a red tractor-trailer that was parked in a commercial truck parking lot behind the McDonald’s restaurant. Based solely upon the information provided by the dispatch office, an officer was sent to the location to investigate and found appellant seated in the driver’s position in the parked truck. The officer approached the driver’s side of the truck and ordered appellant to get out. When appellant exited his vehicle, the officer noted an odor of intoxicants and observed appellant’s poor balance. The officer ordered appellant to perform field sobriety tests. When appellant failed all of the officer’s field sobriety tests, he was placed under arrest and transported to the Springdale Police Department for booking where he made incriminatory statements and registered .08 on a breathalyzer test. Appellant contends that prior to the stop, the officer observed nothing that would indicate wrongful activity on appellant’s part and that the trial court erred in denying his motion to suppress because the arresting officer lacked reasonable suspicion to stop him. The trial court found that appellant was lawfully stopped and detained and denied appellant’s motion to suppress evidence as a result of the stop.

Arkansas Rule of Criminal Procedure 3.1 provides that a law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit a felony, or misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. “Reasonable suspicion” is defined under Rule 2.1 as “suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.”

Justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. United States v. Cortez, 449 U.S. 411 (1981); Terry v. Ohio, 392 U.S. 1 (1967); Johnson v. State, 319 Ark. 78, 889 S.W.2d 764 (1994); Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied 459 U.S. 882 (1982). The reliability of an informant reporting possible criminal activity may be shown by police observations that tend to corroborate the information provided. Alabama v. White, 496 U.S. 325 (1990); Bliss v. State, 33 Ark. App. 121, 802 S.W.2d 479 (1991). However, an accurate description of a particular vehicle, standing alone, does not establish an informant’s reliability, see Kaiser v. State, 296 Ark. 125, 752 S.W.2d 271 (1988), and the mere fact that a caller identifies himself in no way establishes his trustworthiness, see Evans v. State, 33 Ark. App. 184, 804 S.W.2d 730 (1991).

The informant in the present case was a person unknown to and unseen by law enforcement officers, who had not previously provided information to them, and was not otherwise established to be rehable. Cf. Adams v. Williams, 407 U.S. 143, 146-47 (1972) (informant known to police officer personally provided information to officer that was immediately verifiable at the scene; “. . .informant might have been subject to immediate arrest for making a false complaint had [police officer’s] investigation proved the tip incorrect”); Brooks v. State, 40 Ark. App. 208, 212, 845 S.W.2d 530 (1993) (citizen informant, not previously known to police officer, came forward and personally provided to officer information “. . .relating criminal activity that he had observed [and] supplied the officer with the description of the vehicle, its occupants and its license number”; prior to stop of vehicle, police officer verified informant’s description of vehicle, its license number, and number of occupants). Here, the information given by the informant was limited to a description of a vehicle, its location, and that it was occupied by an elderly man seen drinking.

In reviewing a trial court’s denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996). We hold that appellant’s motion to suppress should have been granted. Kaiser v. State; supra; Evans v. State, supra. This does not mean that police must verify the reliability of an informant before conducting an investigation based on the information provided by the informant, as the information may be a “catapult to launch” an investigation. Nottingham v. State, 29 Ark. App. 95, 778 S.W.2d 629 (1989). Upon police investigation and independent verification of the information provided, reasonable suspicion may be established. Id. However, conspicuously absent from the case before us is any police investigation or reasonable suspicion before the officer made an investigatory seizure.

The State argues that the officer acted under the authority of Ark. R. Crim. P. 2.2 which permits a law enforcement officer to request a person to furnish information in investigation of a crime; and that there was not a “seizure” by the officer approaching the vehicle to question appellant. The State relies on Thompson v. State, 303 Ark. 407, 797 S.W.2d 450

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Bluebook (online)
947 S.W.2d 15, 58 Ark. App. 81, 1997 Ark. App. LEXIS 513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frette-v-state-arkctapp-1997.