Jackson v. State

804 S.W.2d 735, 34 Ark. App. 4, 1991 Ark. App. LEXIS 100
CourtCourt of Appeals of Arkansas
DecidedMarch 6, 1991
DocketCACR 90-137
StatusPublished
Cited by8 cases

This text of 804 S.W.2d 735 (Jackson 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
Jackson v. State, 804 S.W.2d 735, 34 Ark. App. 4, 1991 Ark. App. LEXIS 100 (Ark. Ct. App. 1991).

Opinions

Melvin Mayfield, Judge.

On May 21, 1987, appellant pleaded guilty to a charge of burglary and imposition of sentence was withheld for a period of five years conditioned upon compliance with certain conditions, one of which was to refrain from violating any law punishable by imprisonment. On October 18, 1989, a petition to revoke was filed which alleged appellant had violated the terms of his suspended imposition of sentence by possessing a controlled substance (crack cocaine), and on that same date an information was filed charging appellant with violating the statute prohibiting possession of such a substance.

On January 16, 1990, the court, by agreement, heard the revocation petition and the possession charge together using the same evidence for each case. At the conclusion of the hearing, the court revoked the suspended imposition of sentence and sentenced appellant to six years in the Arkansas Department of Correction. Appellant was also found guilty of possession of a controlled substance and was sentenced to three years on that conviction, to be served consecutively to the six-year sentence.

On appeal, appellant argues that the trial court erred in its failure to suppress as evidence the crack cocaine contained in a matchbox which was found in the appellant’s jacket pocket as a result of a “pat down” made by a policeman. It is appellant’s contention that this evidence was seized as a result of an illegal search. Specifically, it is contended that the officer did not have grounds to form a “reasonable suspicion” that appellant was involved in criminal activity; therefore, the officer’s stop of appellant was unlawful and the cocaine should have been suppressed as evidence.

We first note that the exclusionary rule is generally not applicable to revocation proceedings. Dabney v. State, 278 Ark. 375, 646 S.W.2d 4 (1983); Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981); McGhee v. State, 25 Ark. App. 132, 752 S.W.2d 303 (1988). Based upon the authority of these cases, we think the trial court’s revocation should be affirmed under the circumstances of the instant case. However, we do not think the trial court erred in refusing to suppress the cocaine as evidence in this case, therefore, we also affirm the conviction for possession.

At trial, Mark Johnson testified that he had been working for fifteen months as a patrol officer for the North Little Rock Police Department. He said he first came in contact with the appellant on May 11, 1989, at approximately 9:30 to 9:45 p.m. while making an extra patrol through the Dixie Addition. Officer Johnson testified that this is basically a residential area, and “we get more calls there than other places in the city.” He also testified that at roll call at the start of his shift, it is pointed out where extra patrol might be needed and “things to be on the lookout for,” and in May of 1989, the police department was getting complaints, several times a week, about drug trafficking in the Dixie Addition, and at roll call these complaints were talked about.

On the night of May 11, Officer Johnson had been through the Dixie Addition one time and several male subjects ran from him. Because of that, two more units were called, and when they went back through the area, the appellant and three or four other males were standing in front of the abandoned grocery store located in the 800 block of E Street/ The officers had received information about drug trafficking at the corner of Ninth and E Streets. So, the officers approached the men in front of the abandoned building to see what they were doing and asked them for identification. While the officers were approaching, one of the men walked away. The officers then patted down the other individuals to check for weapons. Johnson said this was for the officers’ own protection because he had on several occasions arrested people in this area who had guns on them.

Johnson patted down the appellant and felt something hard in his right jacket pocket. Johnson then reached into the pocket and found two matchboxes. One was empty and the other contained three rocks of what the officer thought was crack cocaine, so he arrested the appellant. It was stipulated that a chemist would testify that the substance in the box tested positive for cocaine.

The appellant correctly argues that stopping and detaining a person is controlled by Ark. R. Crim. P. 3.1 which provides in pertinent part:

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 (1) a felony, or (2) a 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 lav/fulness of his conduct.

Also, as appellant points out, the meaning of the term “reasonably suspects” as used in Ark. R. Crim. P. 3.1, supra, is defined in Ark. R. Crim. P. 2.1 as “a 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.” The appellant also recognizes that we are dealing with an area of the law which has been greatly influenced by the United States Supreme Court decision of Terry v. Ohio, 392 U.S. 1 (1968). In fact, the Commentary following Ark. R. Crim. P. 2.1 points out that Rules 2 and 3 of our Rules of Criminal Procedure are characteristic of those generated by the Terry v. Ohio decision. These rules were discussed at length by the Arkansas Supreme Court in Hill v. State, 275 Ark. 71, 80, 628 S.W.2d 284 (1982), cert. denied, 459 U.S. 882 (1982), where it was said:

The courts have used various terms to describe how much cause or suspicion is necessary or reasonable in order to stop a person or vehicle. The common thread which runs through the decisions makes it clear that the justification for the investigative stops 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. U.S. v. Cortez, 449 U.S. 411 (1981); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587 (1981); Terry v. Ohio, 392 U.S. 1 (1968).

The appellant contends, however, that in the instant case “Officer Johnson’s stop failed the ‘reasonable suspicion’ test as there were not specific, particularized, and articulable reasons indicating involvement by the appellant in criminal activity.” Since we do not agree, rather than attempting to compare the facts in various cases with the facts in this case, we will discuss the general principles we think the cases on this point teach.

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Rabun v. State
821 S.W.2d 62 (Court of Appeals of Arkansas, 1991)
Jackson v. State
804 S.W.2d 735 (Court of Appeals of Arkansas, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
804 S.W.2d 735, 34 Ark. App. 4, 1991 Ark. App. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-state-arkctapp-1991.