State v. McFadden

938 S.W.2d 797, 327 Ark. 16, 1997 Ark. LEXIS 3
CourtSupreme Court of Arkansas
DecidedJanuary 13, 1997
DocketCR 96-1058
StatusPublished
Cited by30 cases

This text of 938 S.W.2d 797 (State v. McFadden) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McFadden, 938 S.W.2d 797, 327 Ark. 16, 1997 Ark. LEXIS 3 (Ark. 1997).

Opinions

Donald L. Corbin, Justice.

This is an interlocutory appeal by the State of Arkansas of the order entered by the Sharp County Circuit Court granting Appellee William P. McFadden’s motion to suppress physical evidence in his criminal case. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(ll) and Ark. R. App. P. — Crim. R. 3. On appeal, Appellant argues that the trial court erred in suppressing the evidence pursuant to A.R.Cr.P. Rule 3.1 because the stop of the vehicle that Appellee was driving was proper pursuant A.R.Cr.P. Rule 2.2.

I. Facts and Procedural History

During the suppression hearing below, Ernie Rose, Chief of Police of Hardy, Arkansas, testified to the following facts. On April 4, 1994, Chief Rose received a report that a juvenile girl was missing. The girl’s parents informed Chief Rose that she was probably with Shane Shipp, who drove a little red Nissan car, and that she had been seeing Shipp against her parents’ wishes. That night Chief Rose and the girl’s father, who was riding along with the officer, spotted the Shipp vehicle and noticed that there were two persons in the car. Chief Rose pursued the vehicle, with his blue lights flashing, and stopped the vehicle shortly thereafter. Shipp was seated in the passenger seat and Appellee McFadden was driving the car. When he approached the vehicle, Chief Rose observed a black shotgun standing upright behind the driver’s seat. When Chief Rose informed Appellee and Shipp that he had stopped them to inquire about the whereabouts of the juvenile girl, Shipp told the officer that he had not seen the girl for a few days. Chief Rose then requested permission to search Shipp’s home, which was nearby, for the missing juvenile girl and Shipp consented.

After completing the search, Chief Rose released the two ■men, but seized the shotgun from the car because the gun had a pistol-type grip and appeared to him to have been sawed-off in violation of Arkansas law. Appellee informed Chief Rose that the shotgun was his, and that the officer should be careful with it because it was loaded. Chief Rose took custody of the weapon, and upon putting the shotgun into the evidence room, another officer observed a package down in the butt of the shotgun. When the officer pulled it out, he observed that the package contained a white powdery substance. Chief Rose sent the package to the Arkansas State Crime Laboratory for analysis; he subsequently received a report stating that the substance was methamphetamine. The shotgun itself was later determined not to be illegal in any respect. After receiving the drug-analysis report, Chief Rose obtained an arrest warrant for Appellee, resulting in felony charges of simultaneous possession of drugs and firearms, a Class Y felony, and possession of methamphetamine, a Class C felony.

Appellee filed a motion to suppress the evidence on the ground that the stop, search, and seizure violated his rights under the Fourth Amendment to the United States Constitution. Specifically, Appellee argued below that the evidence should be suppressed because Chief Rose did not articulate any probable cause for stopping the vehicle, nor did he articulate any probable cause for seizing the weapon.

The only person to testify during the suppression hearing was Chief Rose. On direct examination, Chief Rose stated that he stopped the car because he was looking for the juvenile girl. On cross-examination, Chief Rose stated that at the time he initially observed and stopped the car, he did not believe that a felony had been committed, was being committed, or was about to be committed. Chief Rose stated further that although he did have concerns about the safety of the juvenile girl, the only crime he would have believed may have been committed was endangerment of a minor. Chief Rose again reiterated that he was investigating a missing juvenile, something he did routinely.

The State argued below, as it does on appeal, that the stop of the vehicle was proper and valid pursuant to A.R.Cr.P. Rule 2.2, which allows officers to request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. Appellee argued that the stop amounted to an unlawful detainment pursuant to A.R.Cr.P. Rule 3.1. The trial court agreed with Appellee and granted his motion to suppress both the shotgun and the methamphetamine. We affirm.

II. Validity of the Stop

In reviewing a trial court’s decision granting a defendant’s motion to suppress evidence, we make an independent determination based on the totality of the circumstances and reverse the trial court’s decision only if it is clearly against the preponderance of the evidence. State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991).

Appellant argues that the initial stop of the car driven by Appellee was proper under A.R.Cr.P. Rule 2.2 as a request for information concerning a criminal investigation. We disagree. Rule 2.2(a) provides:

A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.

This court has interpreted Rule 2.2 to provide that an officer may approach a citizen much in the same way a citizen may approach another citizen and request aid or information. See Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990); Baxter v. State, 274 Ark. 539, 626 S.W.2d 935, cert. denied, 457 U.S. 1118 (1982). Following that rationale, this court stated in Thompson:

Not all personal intercourse between policemen and citizens involves “seizures” of persons under the fourth amendment. See Terry v. Ohio, 392 U.S. 1 (1967). A “seizure” occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id.
Police-citizen encounters have been classified into three categories. See U.S. v. Hernandez, 854 F.2d 295 (8th Cir. 1988). The first and least intrusive category is when an officer merely approaches an individual on a street and asks if he is willing to answer some questions. Because the encounter is in a public place and is consensual, it does not constitute a “seizure” within the meaning of the fourth amendment. Id. The second police encounter is when the officer may justifiably restrain an individual for a short period of time if they have an “articulable suspicion” that the person has committed or is about to commit a crime. Id. The initially consensual encounter is transformed into a seizure when, considering all the circumstances, a reasonable person would believe that he is not free to leave. The final category is the full-scale arrest, which must be based on probable cause. Id.

Thompson, 303 Ark. at 409, 797 S.W.2d at 451-52.

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Bluebook (online)
938 S.W.2d 797, 327 Ark. 16, 1997 Ark. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcfadden-ark-1997.