Muhammad v. State

984 S.W.2d 822, 64 Ark. App. 352, 1998 Ark. App. LEXIS 865
CourtCourt of Appeals of Arkansas
DecidedDecember 23, 1998
DocketCA CR 98-201
StatusPublished
Cited by4 cases

This text of 984 S.W.2d 822 (Muhammad 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
Muhammad v. State, 984 S.W.2d 822, 64 Ark. App. 352, 1998 Ark. App. LEXIS 865 (Ark. Ct. App. 1998).

Opinions

Margaret Meads, Judge.

Karriem Muhammad entered a conditional plea of guilty to manufacture, delivery or possession of a controlled substance (cocaine) pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure and was sentenced to forty years in the Arkansas Department of Correction. Appellant’s sole issue on appeal is that the trial court erred in denying his motion to suppress the cocaine found on his body because there was no reasonable articulable suspicion of criminal activity justifying a pat-down search of his person by the officer who stopped him for a traffic violation. We disagree and affirm.

When reviewing the trial court’s denial of a motion to suppress, the appellate courts make an independent determination based on the totality of the circumstances and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997); Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). In making this determination, the evidence is viewed in the fight most favorable to the State. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998).

Arkansas State Trooper Jeffery Thomas testified for the State that on March 21, 1996, he stopped appellant for following too closely behind an eighteen-wheeler tractor-trailer rig. Thomas said that appellant was extremely nervous, his lips were trembling, and he stood very still and erect. Although he said that he was going to Little Rock to visit his father for his birthday, appellant was unable to state his father’s age when asked.

In conjunction with the traffic stop, Trooper Thomas ran National Crime Information Computer (NCIC) and Interstate Identification Index (Triple I) checks on appellant, from which he learned that appellant had a criminal history of sale or possession of a dangerous drug and at least one arrest for aggravated robbery. Thomas then requested and received appellant’s written consent to search the vehicle. At some point, appellant was issued a warning citation for following too closely. Contrary to the dissent’s assertion that Thomas detained appellant after issuing the warning citation, the record is unclear as to when the citation was actually issued, as evidenced by the following colloquy:

Q Did you give him a warning citation?
A Yes, I did. I issued him a written warning ticket for a violation.
Q Did he seem to become more calm or anything at that point in time?
A No, he didn’t. Actually, I didn’t see any noticeable change in the demeanor after making the statement to him that I was going to issue a warning.

While waiting for back-up to arrive, Thomas performed a pat-down search of appellant. When he got to appellant’s belt line, Thomas felt a rigid object that he believed to be the corner of a firearm sticking out of appellant’s waistband. Although appellant attempted to remove Thomas’s hand from the object, Thomas discovered a brick of compressed material wrapped in brown duct tape protruding from appellant’s groin area inside what appeared to be a lady’s girdle.

On appeal, appellant does not contend that Thomas lacked authority to make the initial stop for following too closely; instead, he argues that Thomas had no authority to conduct a pat-down search of his person because there was no reasonable, articulable suspicion of criminal activity. We disagree. Thomas had the requisite reasonable suspicion necessary to detain appellant further and frisk him pursuant to Ark. R. Crim. P. 3.1 and 3.4.

Rule 3.1 of the Arkansas Rules of Criminal Procedure provides:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.

“Reasonable suspicion” is defined in Rule 2.1 of the Arkansas Rules of Criminal Procedure 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.” 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. Coffman v. State, 26 Ark. App. 45, 759 S.W.2d 573 (1988) (citing Terry v. Ohio, 392 U.S. 1 (1968)). In making this determination, the trial court may consider the factors listed in Ark. Code Ann. § 16-81-203 (1987). Those factors most relevant to this case include:

(1) The demeanor of the suspect;
(2) The gait and manner of the suspect;
(3) Any knowledge the officer may have of the suspect’s background or character;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in fight of all the other factors;
(13) The suspect’s apparent effort to conceal an article ....

Although Trooper Thomas acknowledged that he did not have reasonable suspicion to search appellant’s vehicle, appellant gave written consent for the search when asked to do so and does not contend on appeal that his consent was anything but voluntary. While the dissent believes otherwise, it is not necessary for an officer to have reasonable suspicion to request consent to search, see Johnson v. State, 27 Ark. App. 54, 766 S.W.2d 25 (1989); therefore, the request for consent was clearly within Thomas’s purview. Thomas was alone with appellant while awaiting back-up officers to assist in the consensual search of appellant’s automobile, and he testified that he did not feel 100% out of danger, because “there were some signals there.” Thomas, a ten-year veteran of the Arkansas State Police, testified that based on his experience he suspected that appellant was armed, due to appellant’s extreme nervousness, his rigid posture, his trembling Hps, his manner of dress, and appellant’s criminal background.

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Related

Franklin v. State
378 S.W.3d 296 (Court of Appeals of Arkansas, 2010)
McConnell v. State
146 S.W.3d 370 (Court of Appeals of Arkansas, 2004)
Potter v. State
20 S.W.3d 454 (Court of Appeals of Arkansas, 2000)
Weaver v. State
990 S.W.2d 572 (Court of Appeals of Arkansas, 1999)

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Bluebook (online)
984 S.W.2d 822, 64 Ark. App. 352, 1998 Ark. App. LEXIS 865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muhammad-v-state-arkctapp-1998.