McConnell v. State

146 S.W.3d 370, 85 Ark. App. 77, 2004 Ark. App. LEXIS 127
CourtCourt of Appeals of Arkansas
DecidedFebruary 11, 2004
DocketCA CR 03-410
StatusPublished
Cited by4 cases

This text of 146 S.W.3d 370 (McConnell 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
McConnell v. State, 146 S.W.3d 370, 85 Ark. App. 77, 2004 Ark. App. LEXIS 127 (Ark. Ct. App. 2004).

Opinions

Karen R. Baker, Judge.

Appellant, Kenneth J. McConnell, appeals the Washington County Circuit Court’s denial of his motion to suppress. Appellant entered a conditional plea of guilty to driving while intoxicated, fourth offense, and was sentenced to six years’ imprisonment with five years suspended and a $1,000 fine. Appellant has two arguments on appeal. First, appellant argues that the trial court erred in denying his motion to suppress in that the arresting officer violated Arkansas Rule of Criminal Procedure 3.1, the Fourth Amendment to the United States Constitution, and Article 2 of the Arkansas Constitution because he lacked reasonable suspicion to stop the dark BMW driven by appellant. Second, appellant argues that the officer’s stop of the dark BMW should be suppressed because the tip phoned in to the Fayetteville Police Department by the known informant did not contain sufficient indicia of reliability as articulated in Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998). We affirm.

On the evening of July 10, 2002, Michael Scott Stanley, a security officer working at the Cliffs Apartments in Fayetteville, came into contact with a dark BMW. Stanley reported to the dispatcher at the Fayetteville Police Department that once the occupant of the BMW saw Stanley, the BMW took off up the hill to a dead end. Even though the BMW’s occupant saw Stanley following him, the car continued into a dead end area. The driver of the BMW turned around and came back down the hill, making a hard right turn and “flooring” the vehicle. Stanley stated that there was a bulldozer there, which the BMW barely avoided. The driver then backed the BMW all the way down the hill, past Stanley, and sped away. Stanley chased him until he exited the parking lot. Stanley gave both a description of the car and the license plate number to the dispatcher. He also stated that there appeared to only be one occupant in the BMW. He explained that the vehicle turned east out of the parking lot and then turned again traveling north. Stanley provided his name, phone number, and date of birth to the dispatcher.

Officer Crisman testified at the suppression hearing that he responded to the dispatch. Dispatch reported to him that the vehicle had left the vicinity of the Cliffs Apartments. He reported to dispatch that he had located a car matching the description and with the same license plate number given by Stanley approximately three to four miles away from the Cliffs Apartments traveling north. Officer Crisman pulled the vehicle over behind the Butcher Block on College Avenue. Officer Crisman testified that approximately seven minutes had passed between the time Officer Crisman heard the dispatch and the time that he stopped appellant. He testified that he remembered indicating in his report that he was advised of a reckless driver; however, the tape of the call did not mention the term “reckless.” He also testified that a portion of the area in which Stanley observed the vehicle was under construction. On this particular evening, law enforcement was monitoring the construction area to prevent theft. Under these circumstances, Officer Crisman suspected a possible breaking and entering.

Following a hearing, the trial court denied appellant’s motion to suppress. Appellant then entered a conditional plea of guilty, reserving his right to appeal the lawfulness of the stop. This appeal followed.

Appellant argues that the trial court erred in denying his motion to suppress in that the arresting officer violated Arkansas Rule of Criminal Procedure 3.1, the Fourth Amendment to the United States Constitution, and Article 2 of the Arkansas Constitution because he lacked reasonable suspicion to stop the dark BMW. Upon review of a trial court’s denial of a motion to suppress, we make an independent determination based upon the totality of the circumstances; the trial court’s ruling is reversed only if it is clearly erroneous or against the preponderance of the evidence. Frazer v. State, 80 Ark. App. 231, 94 S.W.3d 357 (2002) (citing Mullinax v. State, 327 Ark. 41, 938 S.W.2d.801 (1997)). Arkansas Rule of Criminal Procedure 3.1 (2003) provides that an officer may stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit a felony or misdemeanor involving forcible injury to persons or damage to property. Reasonable suspicion is defined by 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.” Saulsberry v. State, 81 Ark. App. 419, 102 S.W.3d 907 (2003).

Appellant relies on the testimony of Officer Crisman, which appellant asserts did not give rise to a reasonable suspicion in this case. Appellant focuses on the fact that Officer Crisman testified that he did not witness any violation of a traffic law by appellant and that he stopped appellant solely on the information from the dispatcher. Appellant also focuses on the fact that dispatch did not indicate that a crime had been committed and that Officer Crisman testified that he did not believe any misdemeanor or felony had been committed or was about to be committed. However, the existence of a reasonable suspicion must be determined by an objective standard, and due weight must be given to the “specific reasonable inferences” an officer is entitled to derive from the situation in light of his experience as a police officer. Muhammad v. State, 64 Ark. App. 352, 984 S.W.2d 822 (1998) (citing Coffman v. State, 26 Ark. App. 45, 759 S.W.2d 573 (1988); Terry v. Ohio, 392 U.S. 1 (1968)).

It is true that neither Stanley nor the dispatcher specifically stated that appellant was driving recklessly, was drinking and driving, or had committed any specific crime. However, the conduct reported to the police that the driver of this vehicle was driving erratically and driving backwards down a hill at high speed and narrowly missing a bulldozer before speeding away, supports a reasonable suspicion that the driver was impaired. This court in Frazer, supra stated that:

This court has previously recognized the magnitude of the State’s interest in eliminating drunk driving in comparison to relatively minimal intrusions on motorists. In balancing the rights of a motorist to be free from unreasonable intrusions and the State’s interest in protecting the public from unreasonable danger, one court has stated that “[a] motor vehicle in the hands of a drunken driver is an instrument of death. It is deadly, it threatens the safety of the public, and that threat must be eliminated as quickly as possible. ... The ‘totality’ of circumstances tips the balance in favor of public safety and lessens the . . . requirements of reliability and corroboration.” (citations omitted).

(quoting Frette, 331 Ark. at 120-21, 959 S.W.2d at 743). Under these facts, we find that a reasonable suspicion existed for Officer Crisman to stop appellant.

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Bluebook (online)
146 S.W.3d 370, 85 Ark. App. 77, 2004 Ark. App. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcconnell-v-state-arkctapp-2004.