Menne v. State

2012 Ark. 37, 386 S.W.3d 451, 2012 WL 309607, 2012 Ark. LEXIS 57

• Court: Supreme Court of Arkansas
• Decided: February 2, 2012
• Docket: No. CR 10-1304
• Status: Published

Opinions

ROBERT L. BROWN, Justice.

| Appellant Lesa Diane Menne appeals from the circuit court’s denial of her motion to suppress evidence recovered in a search of her vehicle after she was stopped for a traffic violation. We affirm the circuit court’s ruling.

On October 19, 2008, Trooper Phillip Roark of the Arkansas State Police pulled over a pickup truck driven by Menne at approximately 10:57 p.m. outside of Walnut Ridge. Roark initiated the stop because Menne was traveling fifty-five miles per hour in a forty-five-mile-per-hour zone. According to the affidavit Roark filed after the stop, the truck was driven by Menne and had one passenger, Christopher Smith. In the affidavit, Roark says that Menne “appeared nervous,” that he had “arrested Christopher Smith in the same vehicle on [September 20, 2008] for DWI-Drugs and Possession of Marijuana,” that he “located drugs in this same vehicle” during Smith’s arrest, and that he had “information from the Walnut | ¡>Ridge Police Department that Menne was a suspected drug dealer.” Roark concludes, in his affidavit, “[t]aking this into consideration, I asked for consent to search, which was granted by Menne.”

Roark searched Menne’s vehicle and found .0586 grams of marijuana, .0348 grams of methamphetamine, and a prescription bottle with the label torn off. Menne was charged with possession of marijuana, possession of drug paraphernalia, and possession of methamphetamine, a felony.¹ She then moved to suppress the items seized on grounds that the search was illegal. During the ensuing suppression hearing, Roark testified that after he pulled her over, she provided him with her license, registration, and all the documentation he requested. Nevertheless, because Menne “seemed to be nervous” and he had “information that she was dealing drugs,” and “due to the time of night and the previous drug arrest with this vehicle,” Roark called for a K-9 unit to conduct a dog sniff of the vehicle.

On cross-examination, Roark admitted that when he walked up to the vehicle during the traffic stop, he did not observe anything illegal. He also testified that he ran a driver’s license check and “found out that she had a criminal record too.” He could not recall, though, what the criminal record was for or what state it was from, and he admitted that when he called Men-ne’s license in to the dispatcher, the dispatcher did not say anything about a criminal record.

IsRoark testified that about six to seven minutes into the stop, he had determined that Menne’s driver’s license was valid and at about nine to ten minutes into the stop he had determined that the vehicle was properly registered. After he had verified Menne’s documentation, he stated that there was nothing further he needed to do to investigate the traffic violation other than to give Menne her paperwork and a warning citation he had already written but had not yet given to Menne to sign.

Roark further testified that after verifying all of Menne’s documentation, he asked her to step out of the truck approximately thirteen minutes into the stop. He stated that he next requested that Menne consent to a search of her vehicle. This was about fourteen minutes into the stop. He conceded that at some point, Menne said something to the effect of “this is harassment,” although he added that she only said that one time. He proceeded to testify that Menne said he could “go ahead and look.” After she consented, Roark stated that he found in the truck .0368 grams of methamphetamine, .05 grams of marijuana, and a prescription pill bottle with the label torn off. Roark testified that he had not returned Menne’s vehicle registration to her and that he had not had her sign the warning ticket before asking for consent to search the vehicle.

Menne relayed facts different from Roark at the suppression hearing. She testified that Roark returned all of her documents to her eight or nine minutes into the stop. She said that when Roark asked for consent to search her vehicle, she asked him “for what and why.” She said that Roark told her he had “probable cause because of [Smith] being with me.” Menne further said that it was her understanding that Roark “was going to [search] no matter what |4I said.” Menne added that she told Roark four times she felt like she was being harassed and that she never voluntarily consented to a search of the vehicle. On cross-examination, Menne said that she told Roark he could not search her vehicle the first two times he asked, and she reiterated to him “you’re harassing me.” When Roark asked if she cared if he searched her vehicle, she denied ever saying “no, I don’t guess I do,” or “go ahead and look.” During her testimony, the prosecutor repeatedly played a video and audio made by Roark of the stop and asserted that a conversation to that effect could be heard on the video. In response, Menne testified that Roark had asked her “do you have anything in your vehicle,” to which she responded, “no, I guess I don’t.”

After hearing all of the testimony and evidence, including the video and audio of the stop, and hearing argument from counsel, the circuit court denied the motion to suppress. The court gave no reason or explanation for doing so. After the subsequent jury trial, Menne was found guilty of possession of methamphetamine, possession of drug paraphernalia with the intent to use, and possession of marijuana. She was fined a total of $4500.00 for all of the charges and sentenced to thirty-six months’ probation for the methamphetamine charge. On appeal, Menne challenges only the circuit court’s denial of her motion to suppress. The court of appeals reversed the ruling of the circuit court, Menne v. State, 2010 Ark. App. 806, 379 S.W.3d 86, and this court granted the State’s petition for review. When this court grants review, we do so as if the matter had been originally appealed to this court. Brookshire v. Adcock, 2009 Ark. 207, 307 S.W.3d 22.

| Jn reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court’s findings. Yarbrough v. State, 370 Ark. 31, 36, 257 S.W.3d 50, 55 (2007) (citing Mann v. State, 357 Ark. 159, 161 S.W.3d 826 (2004)). We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Yarbrough, 370 Ark. at 36, 257 S.W.3d at 55 (citing Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001)).

Menne’s principal argument is that she was illegally detained after the purpose of the traffic stop was complete in contravention of this state’s case law and Arkansas Rule of Criminal Procedure 3.1. We first observe that Trooper Roark’s initial stop was legal, and Menne does not appear to contest that issue on appeal. Roark testified that Menne was traveling fifty-five miles per hour in a forty-five-mile-per-hour zone. See Ark.Code Ann. § 27-51-201. The legality of the stop, accordingly, is not an issue in this appeal.

Two issues confront this court in the instant case. The first is whether the purpose of the traffic stop was over at the time Trooper Roark requested Menne’s consent to search the vehicle. The second issue is whether Roark developed a reasonable suspicion during the course of the traffic stop that was a sufficient basis to detain Menne further. The parties agree that at the time Roark requested a consent to search, he had not given Menne the warning citation for speeding. According to Roark’s testimony, he had not yet returned all of Menne’s documents to her. Our case law suggests that a stop is not complete until the warning citation Rand other documents are delivered back to the driver. See Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007) (holding that it was permissible for a police officer to ask for consent to search the vehicle when the officer had determined that he would issue a warning ticket but had not yet returned the driver’s identification papers or issued that ticket); see also Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004) (noting that the legitimate purpose of the traffic stop ended after the officer handed back the driver’s license and registration along with a warning ticket). Countering that, however, is Menne’s assertion that the warning citation was not provided to her by Roark because he was waiting for the K-9 unit to begin the dog sniff. Because we conclude that Roark had reasonable suspicion to detain Menne, we need not resolve the first issue.

We conclude that Roark had reasonable suspicion to detain Menne pursuant to Rule 3.1 of our Arkansas Rules of Criminal Procedure. Rule 3.1 requires the officer to possess reasonable suspicion that the person is committing, has committed, or is about to commit a felony or a misdemeanor involving danger to persons or property. Malone v. State, 364 Ark. 256, 262-68, 217 S.W.3d 810, 814 (2005). The officer must develop reasonable suspicion to detain before the legitimate purpose of the traffic stop has ended. Id. at 263, 217 S.W.3d at 814 (citing Burks v. State, 362 Ark. 558, 210 S.W.3d 62 (2005)). Whether there is reasonable suspicion depends upon whether, under the totality of the circumstances, the police have “specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity.” Malone, 364 Ark. at 263, 217 S.W.3d at 814 (citing Laime v. State, 347 Ark. 142, 155, 60 S.W.3d 464, 473 (2001)).

|7The factors that combined to give Roark a reasonable suspicion that Menne was engaged in criminal activity are (1) one month earlier he had stopped the same truck and arrested Menne’s passenger, Christopher Smith, for DWI and possession of marijuana; (2) during a criminal history check, Roark discovered Menne had been previously arrested; (3) he had information from a local police department that Menne was suspected of drug dealing; (4) Menne was nervous; and (5) the time of night.

We are mindful that while one of these factors may not have been enough to lead to “reasonable suspicion,” viewing the totality of these circumstances, we cannot say the circuit court erred in denying the suppression motion. See, e.g., Laime, 347 Ark. at 159, 60 S.W.3d at 475 (holding that under a totality-of-the-circumstances review, the officer legitimately entertained a reasonable suspicion of criminal activity but noting that mere nervousness, standing alone, was not sufficient to constitute reasonable suspicion of criminal activity and grounds for detention). Arkansas Code Annotated section 16-81-203 specifically mentions the demeanor of the suspect, knowledge of the suspect’s background and character, time of night, and information received from third parties as factors to be considered by law enforcement officers to determine grounds for reasonable suspicion. See Ark.Code Ann. § 16-81-203(1), (3), (6), (9) (Repl.2005). There is no requirement under the statute that a police officer need to have personally observed any or all of these factors.

We further emphasize that the search by Roark occurred within fifteen minutes of the stop, even though the fifteen-minute time constraint under Rule 3.1 would not have begun | ^running until after Roark completed his routine tasks associated with the traffic stop.² We hold that Menne was reasonably detained at the time Roark made his request to search.

Regarding the consent itself, the State had the burden of proving by clear and positive evidence that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion. Ark. R.Crim. P. 11.1 (2008). Roark testified that when he asked Menne if he could search her vehicle, she responded, “if you want to, go ahead and look.” Roark acknowledged that at some point Menne alleged that he was harassing her. According to Roark’s testimony, after she made that allegation, he informed her that she had the right to refuse consent.³ The video and audio of the stop does not contradict Roark’s testimony. This exchange occurred while Roark and Menne were standing behind her truck on the side of the road.

The circuit court apparently believed Roark’s version of the events, which is supported by the video and audio. Hence, it denied Menne’s motion to suppress. Credibility of witnesses is an issue for the finder of fact. R.M.W. v. State, 375 Ark. 1, 8, 289 S.W.3d 46, 51 (2008). We cannot say that the circuit court erred in finding that Menne’s consent was voluntarily given and was not the product of harassment.

Justice Baker’s dissent is in error in two fundamental respects. First, it concludes that Roark impermissibly extended the traffic stop by not returning the warning ticket to Menne. Although this issue was summarily argued by Menne, her briefs to this court focused on the lack of reasonable suspicion for continued detention. To the extent that Menne argued that the legitimate purpose of the traffic stop ended before Roark requested consent to search, Menne does not support that argument with citation to authority. We do not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Roberts v. State, 324 Ark. 68, 71, 919 S.W.2d 192, 194 (1996). Moreover, this court has been resolute in stating that we will not make a party’s argument for that party or raise an issue, sua sponte, unless it involves the trial court’s jurisdiction. Hanlin v. State, 356 Ark. 516, 529, 157 S.W.3d 181, 189 (2004).

Next, Justice Baker’s dissent argues that Roark did not have reasonable suspicion to detain Menne after the purpose of the traffic stop had ended. The stop, however, had not ended because the warning ticket had not been given to Menne. See, e.g., Yarbrough, 370 Ark. 31, 257 S.W.3d 50. But beyond that, the dissent says in its view the factors giving rise to Roark’s reasonable suspicion did not pass muster. That, though, is not the standard of review. Rather, it is whether, after a de novo review of the totality of the circumstances, the Imcircuit court’s ruling denying the motion to suppress is clearly against the preponderance of the evidence. Yarbrough, 370 Ark. at 36, 257 S.W.3d at 54. We do not think it was.

Chief Justice Hannah’s dissent falls into something of the same trap. Whether the traffic stop had ended without the issuance of a warning citation was not developed on appeal by Menne. Moreover, this dissent surmises that Roark withheld issuing the citation to extend that stop. Roark’s “belief’ and any ulterior motive in this regard are not supported by the record.

But regardless, Roark had reasonable suspicion to detain Menne as already discussed. After Menne’s vehicle was stopped, with Smith as a passenger, Roark recollected that he had stopped the same vehicle and arrested Smith for drug-related offenses one month earlier. In addition, he had information from a local police department that Menne was involved in drug dealing. Roark also had knowledge of Menne’s prior arrest. It was late at night, and Menne was nervous. All of these factors combined give Roark reasonable suspicion, and the circuit court so found.

We affirm the circuit court’s denial of Menne’s motion to suppress the evidence seized as a result of Roark’s search of her truck, because that ruling is not clearly against the preponderance of the evidence.

Affirmed. Court of appeals opinion vacated.

HANNAH, C.J., and BAKER, J., dissent. GOODSON, J., not participating.

1 . The State did not pursue charges relating to the pills found in the prescription bottle after Menne produced a valid prescription.

2 . As part of a valid traffic stop, a police officer may detain a traffic offender while the officer completes certain routine tasks, such as computerized checks of the vehicle’s registration and the driver’s license and criminal history, and the writing up of a citation or warning. Sims, 356 Ark. at 514, 157 S.W.3d at 535 (citing Laime, 347 Ark. 142, 60 S.W.3d 464 (2001)). During this process, the officer may ask routine questions such as the driver’s destination, the purpose of the trip, or whether the officer may search the vehicle. Sims, 356 Ark. at 514, 157 S.W.3d at 535. In addition, the officer may act on whatever information is volunteered. Id. This detention is unrelated to a detention under Arkansas Rule of Criminal Procedure 3.1. Laime, 347 Ark. 142, 157, 60 S.W.3d 464, 474.

3 . Under Welch v. State, 364 Ark. 324, 219 S.W.3d 156 (2005), Roark was not required to advise Menne that she had the right not to consent to the search.