Van Patten v. State

697 S.W.2d 919, 16 Ark. App. 83, 1985 Ark. App. LEXIS 2182

• Court: Court of Appeals of Arkansas
• Decided: October 16, 1985
• Docket: CA CR 85-23
• Status: Published

Opinions

Lawson Cloninger, Judge.

Appellant, Charles Van Patten, was convicted of driving while intoxicated in violation of Ark. Stat. Ann. § 75-2503 (Supp. 1985). The court fined him $150.00 plus costs, sentenced him to twenty-four (24) hours in jail, suspended his driver’s license for ninety (90) days, and ordered him to complete an alcoholic rehabilitation program. On appeal, appellant argues that the police stopped him without sufficient reasonable cause and thus the trial court should have excluded all evidence of the DWI. We agree with appellant and reverse his conviction.

The events leading up to the charges being brought against appellant occurred on the evening of December 18, 1983. Kevin Tindle, a Little Rock policeman, testified that at approximately 11:34 p.m. he received a call regarding a loud party disturbance at Mara Lynn Apartments. While enroute to investigate the disturbance, Officer Tindle received a second call which advised him that the person creating the disturbance had left the apartments in a brown Jeep. As Officer Tindle approached the intersection of Shackleford and Mara Lynn, he observed a brown and tan Jeep approaching the same intersection. Tindle said that the driver of the vehicle was not committing any traffic violations, but that he stopped the vehicle anyway, based on the information he had received from the calls. The officer testified that the driver of the Jeep, the appellant, smelled of alcohol and staggered when he stepped out of the Jeep. Officer Tindle transported appellant to the detention center and administered a breathalyzer test, the results of which were .15%.

Appellant argues that Officer Tindle did not have reasonable cause to stop him because he was not committing any traffic violations and the call about the loud party was not specific enough to give Officer Tindle a reasonable basis for stopping him. The State argues that the stop of appellant was reasonable because the officer had reason to suspect that a misdemeanor possibly involving injury to persons and property had been committed and because of the location of the Jeep and the time of night.

The Fourth Amendment of the Constitution protects individuals by forbidding all unreasonable searches and seizures. Appellant was protected by the Fourth Amendment as he drove down the street, so the issue is whether, under all of the circumstances, appellant’s right to personal security was violated by an unreasonable seizure. The test is to balance the nature and quality of the intrusion on personal security (the seizure) against the importance of the governmental interests alleged to justify the intrusion. United States v. Hensley, 496 U.S _, 83 L.Ed.2d 604 (1985).

Arkansas law recognizes that where felonies or crimes involving a threat to public safety are concerned, the government’s interest in solving the crime and promptly detaining the suspect outweighs the individual’s right to be free of a brief stop and detention. A.R.Cr.P. Rule 3.1 reads in pertinent part:

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.

In Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982), the police received a radio dispatch describing an armed and extremely dangerous suspect who had committed armed robbery and murder. The suspect’s vehicle was described as a maroon, late model Ford Thunderbird with a white license plate with dark blue or black lettering. Soon thereafter, an officer observed a vehicle matching that description with a white Oklahoma license plate with dark letters. The Arkansas Supreme Court held that the stop was reasonable because the car matched the description; it was not likely that another vehicle of the description broadcasted was in the area at that time; and the crimes had just recently been committed in a neighboring county. The court, in discussing Rule 3.1, stated that “the justification for the investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity.” Id. at 80.

In the case at bar, we do not think Officer Tindle had specific, particular or articulable reasons to suspect that a felony or a misdemeanor involving danger of injury to persons or property had been committed. The radio dispatch that he received was anonymous and it gave extremely general information about a “loud party” and a “brown Jeep.” The officer did not investigate or confirm the complaint before stopping appellant, so he had no reason to suspect that a misdemeanor involving personal or property damage had been committed by the occupant.

Thus, under the totality of the circumstances, we think Officer Tindle’s stop of appellant was unreasonable under A.R.Cr.P. Rule 3.1; that it violated appellant’s Fourth Amendment rights; and that the evidence of the DWI should have been excluded.

Reversed and dismissed.

Cooper and Mayfield, JJ., dissent.