Kearse v. State

986 S.W.2d 423, 65 Ark. App. 144, 1999 Ark. App. LEXIS 96

• Court: Court of Appeals of Arkansas
• Decided: February 24, 1999
• Docket: CA CR 98-615
• Status: Published

Opinions

John E. Jennings, Judge.

The appellant, Ricky Kearse, was found guilty by a Marion County jury of possession of methamphetamine, possession of marijuana, simultaneous possession of drugs and weapons, and possession of drug paraphernalia. He was sentenced to concurrent terms of 120 months, or ten years in prison. As his only issue on appeal, appellant contends that the trial court erred in denying his motion to suppress. We affirm.

The items of contraband that formed the basis for appellant’s convictions were discovered in a search conducted by State Trooper Scott Roberts after a stop of appellant’s vehicle. At the suppression hearing, Officer Roberts testified that he responded to a call received at the Marion County Sheriffs Department and that Officer Bob Chapman, a Bull Shoals policeman, rode along with him. On Highway 62, just outside of Yellville, they met a vehicle traveling in excess of the speed limit at 71 miles an hour, according to radar. Roberts turned around and gave chase. After negotiating curves and hills for about three-quarters of a mile, he saw the target vehicle turn onto a gravel road, still at a high rate of speed. The vehicle came to a stop upon encountering a locked gate.

Officer Roberts had appellant get out of the vehicle. He testified that, at least initially, it was his intention to conduct a pat-down search of appellant’s person for reasons of his own safety. He based this on his observation of appellant leaning over toward the passenger side of the vehicle, his detection of the odor of alcohol, his impression that appellant had tried to evade the stop, the fact that the stop took place in an out-of-the-way area, and his observation of live ammunition lying loosely on the driver-side floorboard of appellant’s vehicle. Roberts testified, however, that he placed appellant under arrest for speeding, after appellant made an uncooperative statement. Roberts patted appellant’s left front pocket and felt what he believed to be a magazine clip of a pistol. While asking where the weapon was, he retrieved the gun clip and felt something else. It was a bag of marijuana. When Roberts mentioned a weapon, Officer Chapman came over to offer assistance. Chapman retrieved from appellant’s right front pocket a .380 caliber, semi-automatic pistol that was chambered and fully loaded. A bag of crystal methamphetamine was found in appellant’s watch pocket.

In his argument for reversal, appellant does not question the validity of the stop. He also concedes that he was speeding. He argues that the search cannot be supported as either a Terry search or as one incident to arrest.

In reviewing the denial of a motion to suppress, we make an independent examination based on the totality of the circumstances and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998).

When an officer is justified in believing that an individual he is investigating at close range is armed and dangerous, a pat-down search may be conducted to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Terry v. Ohio, 392 U.S. 1 (1968); Shaver v. State, 332 Ark. 13, 963 S.W.2d 598 (1998). In Terry, the Court said:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.

Terry v. Ohio, 392 U.S. at 23. The considerations announced in Terry are codified in Rule 3.4 of the Arkansas Rules of Criminal Procedure, which states:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and pres-endy dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.

The issue in these cases is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Saul v. State, 33 Ark. App. 160, 803 S.W.2d 941 (1991).

Appellant’s argument is that Officer Roberts’s testimony is not deserving of belief and that there is thus no reason to consider the situation as one posing a danger to the officers. But we defer to the trial court’s finding of fact when the only determination is the credibility of a witness. Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997). Officer Roberts’s testimony was deemed credible by the trial court, and we cannot say that appellant’s argument warrants a finding that the denial of the motion to suppress was clearly erroneous.

Appellant’s argument that the search cannot be justified as one incident to an arrest is based on the contention that an arrest for a minor traffic violation or a “non-jailable” offense is contrary to the spirit of the Fourth Amendment. He recognizes that Arkansas law is not supportive of that position by referring us to the decisions in State v. Earl,¹ 333 Ark. 489, 970 S.W.2d 789 (1998), and Wright v. State, 300 Ark. 259, 778 S.W.2d 944 (1989). In Earl, the supreme court ruled that a motorist could be arrested for running a stop sign, while in Wright the court noted that one could be arrested for speeding. The authority for these holdings is Rule 4.1 (a) (iii) of the Arkansas Rules of Criminal Procedure, which provides that a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person has committed any violation of the law in the officer’s presence. Appellant urges us, however, to overrule these supreme court decisions. We lack the authority to do so. Roark v. State, 46 Ark. App. 49, 876 S.W.2d 596 (1994). Moreover, appellant has cited no authority for his argument that Rule 4.1 is constitutionally infirm. That is sufficient reason to affirm the trial court’s ruling. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997).

Appellant has conceded that he was speeding, and the officer in this instance made an actual arrest of appellant for committing that offense. A search incident to a lawful arrest is a traditional exception to the warrant requirement. United States v. Robinson, 414 U.S. 218 (1973). The trial court’s finding that the search was proper as incident to a lawful arrest is not clearly erroneous.

We conclude that the judge’s denial of the motion to suppress is supported on both the stated grounds.

Affirmed.

Stroud, J., agrees. Griffen, J., concurs.

1 State v. Earl, infra, has been effectively overruled by the Supreme Court in its decision of Knowles v. Iowa, 119 S.Ct. 484 (1998), but only insofar as the Earl decision relates to Ark. R. Crim. P. 5.5.