Kimery v. State

973 S.W.2d 836, 63 Ark. App. 52, 1998 Ark. App. LEXIS 576
CourtCourt of Appeals of Arkansas
DecidedSeptember 9, 1998
DocketCA CR 97-1172
StatusPublished
Cited by5 cases

This text of 973 S.W.2d 836 (Kimery 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
Kimery v. State, 973 S.W.2d 836, 63 Ark. App. 52, 1998 Ark. App. LEXIS 576 (Ark. Ct. App. 1998).

Opinion

Judith Rogers, Judge.

Bricks of marijuana weighing some six-odd pounds were discovered in appellant Roger Kimery’s vehicle. Appellant filed a pretrial motion to suppress this evidence, in which he argued that the stop of his vehicle for a traffic violation was a pretext for conducting a search for drugs. The trial court rejected that argument finding that a search of the vehicle was permitted on grounds of reasonable or probable cause under Ark. R. Crim. P. 14.1. Alternatively, the trial court also upheld the seizure under the plain-view doctrine.

Pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure, appellant entered a conditional plea of guilt to a charge of possession of a controlled substance (marijuana) with intent to deliver, reserving the right to appeal the trial court’s denial of his motion to suppress. For reversal, appellant challenges both findings made by the trial court. We find no error and affirm.

The record discloses that on July 21, 1996, Investigator Bryan Malone of the Poinsett County Sheriff s Office received a phone call from a confidential informant who said that appellant had just been to the informant’s house and had tried to sell him a quantity of marijuana. Prior to receiving this call, Officer Malone had already obtained a warrant authorizing a search of the appellant’s home based on this same informant’s purchase of marijuana at the home the previous day. Officer Malone set out to investigate, and Officer Danny Smith accompanied him. They proceeded to the area of the informant’s home and met appellant’s vehicle travelling down the highway. Officer Malone testified that, although they were in an unmarked patrol car, it was obvious that it was a police car, given the color, the make of the vehicle, and the number (five or six) of antennae on the back of it. He said that, as the vehicles came within fifty yards of one another, appellant “swept” into the driveway of a farmer’s shop. Officer Malone activated the blue lights shortly after appellant turned into the driveway. Malone testified that he took this action because appellant had made an illegal turn in that no signal had been used when the turn was made. Admitting that he was also prompted by the information he had just received from the informant, as well as his knowledge of the activities that took place the day before, Malone testified that he would stop any vehicle for making an improper turn, provided he had witnessed the violation occur. The officers turned around and pulled into the driveway as appellant was emerging from his vehicle. In the presence of police officers arriving in a vehicle with flashing blue lights, appellant walked hastily into the farm shop. The officers parked behind appellant’s vehicle.

As to the discovery of the contraband, Officer Malone testified that appellant came back outside and that, while he was standing with appellant beside the police car, Officer Smith exclaimed that he had found drugs in appellant’s vehicle. Malone was situated a short distance away from appellant’s vehicle, and within a few moments he walked over to see what had been found. He saw a large quantity of marijuana in the floorboard of the vehicle. According to Malone, the marijuana was in the form of bricks wrapped in Saran-Wrap material, and there were five to seven such bricks stacked three-quarters of the way up inside a brown paper bag. The court questioned the officer on two occasions:

The Court: Could you see inside the bag from the outside of the car:
Witness: Yes, sir. I’m six foot three and standing up from the vehicle, and when the bag’s direcdy below you, it’s pretty easy to see what’s inside the vehicle.
The Court: But I mean, they hadn’t folded the bag over —■
Witness: No, sir.
The Court: — or tried to hide it —
Witness: No, sir.
The Court: — it was in the floorboard of the car?
Witness: Yes, sir.
The Court: That’s kind of dumb.
Witness: Yes, sir.
The Court: Was it a regular size grocery sack? A brown paper poke?
Witness: Yes, sir.
The Court: ' And the top was open, and you could just see down into it?
Witness: Yes, sir.
The Court: Passenger side floorboard?
Witness: Yes, sir.

Officer Malone also testified that the paper bag had not been folded at all, that it was not even crinkled, and that it was almost like new.

Ricky Scott was at the farm shop that day and testified on appellant’s behalf. He said that appellant had been there a few minutes before the officers stopped and that the officers had driven by the shop twice before stopping. He did not recall seeing the marijuana, saying that he was minding his own business.

Charles Strange was also at the shop, working on a lawn mower. He testified that, while standing outside and talking with appellant, the officers pulled into the driveway but then drove back out onto the road, and then turned around and came back to the shop. Looking inside appellant’s vehicle from the driver’s side, he saw a black plastic garbage bag. He said that he could not see what was inside the bag.

Appellant testified that the marijuana bricks were inside a plastic garbage bag that was tied at the top and sitting on the passenger-side floorboard. He said that the contents of the bag could not be seen.1

While this appeal was pending and during the course of our deliberations, the supreme court decided the case of State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998), an appeal brought by the State upon the trial court’s grant of a motion to suppress evidence. There, Hezile Earl had been stopped by a police officer who had observed Earl’s vehicle run a stop sign. Reportedly, Earl was uncooperative and belligerent, so the officer conducted a search of the passenger compartment of the vehicle for weapons and found a prescription bottle containing a suspicious substance that proved to be crack cocaine. Earl was then arrested.

On these facts, the supreme court reversed the order of suppression. After first observing that generally the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred, the court based its reversal on the provisions of Rules 4.1 and 5.5 of the Arkansas Rules of Criminal Procedure. Under Rule 4.1, an officer has the authority to 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.

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2014 Ark. App. 574 (Court of Appeals of Arkansas, 2014)
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210 S.W.3d 915 (Court of Appeals of Arkansas, 2005)
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Barrientos v. State
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Bluebook (online)
973 S.W.2d 836, 63 Ark. App. 52, 1998 Ark. App. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimery-v-state-arkctapp-1998.