Johnson v. State

889 S.W.2d 764, 319 Ark. 78, 1994 Ark. LEXIS 734
Supreme Court of Arkansas·Decided December 19, 1994·No. CR 94-615·Published·Cited by 8 cases

Opinions

Steele Hays, Justice.

This case is before us on review of a decision by the Arkansas Court of Appeals, following our granting of the state’s petition for certiorari. We accepted review because the en banc court of appeals’ vote to deny a rehearing was three-to-three and the case requires resolution for the correct and uniform administration of the criminal law. A single point on review is presented by the State — whether the trial court was correct in refusing to suppress evidence obtained during an investigatory stop of appellant Billy Ray Johnson’s vehicle. We conclude that the trial court ruled correctly and we affirm.

On March 2, 1994, the court of appeals handed down an unpublished decision in Johnson v. State, No. CACR 93-497, in which a three-member panel reversed Billy Ray Johnson’s conviction on a charge of possession of methamphetamine with intent to deliver, on the premise that the trial court should have granted his motion to suppress evidence because the investigatory stop of his vehicle and the subsequent search and seizure were predicated on an anonymous tip. Johnson had entered a conditional guilty plea, contingent on the outcome of his appeal of the trial court’s denial of the motion to suppress, pursuant to A.R.Cr.P. Rule 24.3(b).

The state requested a rehearing, which was denied by a three-to-three division of the court of appeals sitting en banc. See Johnson v. State, 46 Ark. App. 67, 876 S.W.2d 607 (1994). The state filed a petition for certiorari, citing Ferguson v. Order of United Commercial Travelers of America, 307 Ark. 452, 821 S.W.2d 30 (1991). In that case we held that:

We have traditionally granted certiorari for the review of tie-vote court of appeals’ decisions that affirm a judgment of the trial court. This was the first case in which we were asked to grant certiorari because of a tie vote denying rehearing. We concluded that the same policy should be applicable in both situations and granted certiorari.

307 Ark. at 453, 821 S.W.2d at 31.

This court granted the petition for certiorari on June 6, 1994. When we review a three-to-three decision of the court of appeals under Ark. Sup. Ct. R. l-2(f), we consider the case as though it had originally been filed in this court. Maloy v. Stuttgart Memorial Hospital, 316 Ark. 447, 872 S.W.2d 401 (1994).

The facts presented to the trial court, with all presumptions favorable to the trial court’s ruling, Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993), are these: Officer Terry Grizzle had twenty-one years service with the Fort Smith Police Department, fourteen years in narcotics. He testified the department received an anonymous call advising that Billy Ray Johnson and Angela Highsmith were in a particular unit of the Stonewall Jackson Inn in Fort Smith selling crank (amphetamine and methamphetamine), using a blue van to make deliveries. Officers Grizzle, Howard and Sullivan immediately set up surveillance and when Johnson and Highsmith came out of the motel and drove off in the van, the officers made an investigative stop. Johnson readily agreed to a search of the van and a quantity of hidden crank was discovered. Grizzle had known Johnson for a number of years and had a rapport with him. He knew Johnson to have previous drug arrests and convictions. Officer Howard’s testimony was that both Johnson and Highsmith had been arrested before for drug violations and the officers had received information within the past ninety days “off and on” that Johnson was involved with other individuals in drug sales. In this review we engage in all reasonable presumptions consistent with the ruling of the trial court. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994).

The question before this court is: Was the trial court clearly wrong in deciding that the foregoing circumstances in their entirety were sufficient to arouse in trained police officers a reasonable suspicion of criminal activity? We believe that, given the totality of the circumstances, an investigative stop is precisely what should be expected of police officers. The search in this case was indisputably consented to by Billy Ray Johnson, hence, we are dealing with a mere stop, the least intrusive interference known to law enforcement. See 3 La Fave, Search and Seizure, § 9.3(e) at 486 (1987). Where the felonies or threats to the public safety are concerned, the government’s interest in solving the crime and promptly detaining the suspect outweighs the individual’s right to be free from a brief stop and detention. United States v. Hensley, 469 U.S. 221 (1985).

The landmark case dealing with investigative stops is Terry v. Ohio, 392 U.S. 1 (1968). Terry had appealed a conviction for carrying a concealed weapon. He was observed by a detective about 2:30 one afternoon. The officer’s interest in Terry and two companions was aroused because they walked back and forth in a particular block peering in a store window and then conferring at the corner. The officer became suspicious and believed the men were “casing” the store for a robbery. He approached the men, identified himself as a police officer, and asked for their names; he was not acquainted with any of the three by name or sight and had received no information concerning them from any source. When the men “mumbled something” in response to his question the officer grabbed Terry, “spun him around” to frisk him and found a pistol in his overcoat pocket. The Supreme Court of the United States affirmed a decision of the Supreme Court of Ohio that the revolver was properly admitted in evidence, holding that the- officer had reasonable grounds to believe that Terry was armed and dangerous and that his behavior justified an investigative stop. The court noted that the suspects had gone through a series of acts, while innocent in themselves, when taken together warranted further investigation. And while the officer could not rely entirely on his intuition, he could draw on his experience in observing people under a variety of circumstances.

The Arkansas Court of Appeals has recognized that judicial oversight in this area involves a balancing of the nature and extent of the intrusion against the attendant governmental interest. Miller v. State, 21 Ark. App. 10 (1987). Moreover, citing Terry, supra, and Sibron v. New York, 392 U.S. 40 (1968), the Court of Appeals has noted that a stop is “a far lesser intrusion than a frisk,” as occurred in Terry v. Ohio, supra. Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985). Building on that rationale, it seems that the stop in Terry v.

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Johnson v. State, 889 S.W.2d 764, 319 Ark. 78, 1994 Ark. LEXIS 734 (Ark. 1994).

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