Barrientos v. State

Decision Date07 February 2001
Docket Number00-279
Citation39 S.W.3d 17
PartiesJOSE BARRIENTOS, APPELLANT V. STATE OF ARKANSAS, APPELLEE CACR00-279 Arkansas Court of Appeals 7 February 2001 APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT, NO. CR97-815, HON. CHARLES EDWARD CLAWSON, JR., JUDGE REVERSED AND REMANDED Sam Bird, Judge. Jose Barrientos was convicted by the trial court, sitting as trier of fact, of possession of methamphetamine with intent, for which he was sentenced to twenty years in the Arkansas Department of Correction. He raises five points on appeal: (1) that the police officer had no probable cause to stop his vehicle; (2) that even if the officer had probable cause to stop his vehicle, the stop exceeded the duration and scope of a proper investigation; (3) that the officer's drug dog was not sufficiently reliable to establish probable cause to search, and that the officer's use of "handler cues" was instrumental in getting the dog to "alert" at the rear of appellant's vehicle; (4) that the State did not meet its burden of proving by clear and positive evidence that appellant consented to the search of his vehicle, thus rendering the search unlawful; and (5) that the evidence wasinsufficient to show that appellant was aware the illegal drugs were in his vehicle. We find merit in Barrientos's first argument, and we reverse and remand. The court below conducted a hearing on a motion by Barrientos to suppress methamphetamine that had been found in a hidden compartment of the gas tank in his car. The State presented evidence that on
CourtArkansas Court of Appeals

7 February 2001

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT, NO. CR97-815, HON. CHARLES EDWARD CLAWSON, JR., JUDGE

REVERSED AND REMANDED

Sam Bird, Judge.

Jose Barrientos was convicted by the trial court, sitting as trier of fact, of possession of methamphetamine with intent, for which he was sentenced to twenty years in the Arkansas Department of Correction. He raises five points on appeal: (1) that the police officer had no probable cause to stop his vehicle; (2) that even if the officer had probable cause to stop his vehicle, the stop exceeded the duration and scope of a proper investigation; (3) that the officer's drug dog was not sufficiently reliable to establish probable cause to search, and that the officer's use of "handler cues" was instrumental in getting the dog to "alert" at the rear of appellant's vehicle; (4) that the State did not meet its burden of proving by clear and positive evidence that appellant consented to the search of his vehicle, thus rendering the search unlawful; and (5) that the evidence wasinsufficient to show that appellant was aware the illegal drugs were in his vehicle. We find merit in Barrientos's first argument, and we reverse and remand.

The court below conducted a hearing on a motion by Barrientos to suppress methamphetamine that had been found in a hidden compartment of the gas tank in his car. The State presented evidence that on August 25, 1997, Barrientos was traveling cross-country on I-40 with Cruz Frias, who is his sister-in-law, and a child, Carol Barrientos. At about 2:30 a.m. he drove past Officers Joe Taylor and Chuck Townsend, who were parked in the median while working drug interdiction for the Conway Police Department and patrolling with Taylor's drug dog, Prissy. Taylor testified that the officers followed Barrientos for almost five miles. During that time they noticed that the California license plate on his car did not expire until October of 1998, which Taylor thought to be unusual because that date was still fourteen months away and because all of the license plates that he had encountered during the past ten years had a one-year expiration date. He said that it occurred to him that the expiration date might be a mistake or that it might have been deliberately put there to "mislead" about the true expiration date of the vehicle. However, before stopping the car, he had the license checked; he learned that the expiration date was valid, that the vehicle was properly registered in California to a man named Jerry Lichtenberger, and that the car had not been reported stolen. Officer Taylor testified that as they followed Barrientos, he observed that the car was traveling in the right-hand lane and that it was weaving between the lines in its own lane. He said that he decided to stop Barrientos's car because he thought that the driver might be sleepy.

Taylor said that Barrientos's driver's license and the papers on the car were all in order, that Barrientos said that he had just bought the car from a man named Jerry with a "funny last name," but that Barrientos did not have any papers to show that a transaction had occurred between Jerry and himself. Taylor said that he asked Barrientos how long he had been driving and Barrientos answered that he had just started driving at the last town they passed through, but that he was unable to recall the name of that town. When Taylor asked him where he was coming from and where he was going, Barrientos replied that he was coming from California, that he was looking for antique cars to fix up and sell, and that he was going to the next state. Taylor testified that Barrientos was unable to name the next state. Taylor also testified that Barrientos said that he and his passengers had left Los Angeles on Saturday afternoon about 4:00 p.m., which Taylor estimated had been approximately thirty-nine hours earlier, and that this made Taylor suspicious because he did not think that Barrientos could have stopped and looked at many junk cars and driven from California to Conway in that length of time. Taylor said he also thought it was very odd that Barrientos would be looking for junk cars in a Lincoln Town Car that did not have a trailer hitch.

Officer Taylor testified that he then got Prissy out of the patrol car and walked her around Barrientos's car. He said that Prissy alerted at the right-rear tire of Barrientos's car, and when they circled the car again, she alerted on the trunk.

After conducting a search of the interior and trunk of the car and finding nothing, Taylor looked under the car and observed what appeared to be new straps and fresh undercoating on the gas tank. He then crawled beneath the car and tapped on the gas tank. He said that the tank sounded hollow on one side but solid on the other. Taylor said that he told Barrientos that he and his passengers were free to leave but that he was impounding the car to investigate further. Taylor said he gave Barrientos and his passengers the option of leaving afoot, driving the car to a location where the car would be searched, or being driven somewhere by Taylor. Barrientos and his passengers chose to stay with the car. They went to an old wrecker shop on Highway 64 where officers jacked up the car and removed the gas tank. Inside the gas tank was a false compartment that contained what laboratory tests later determined to be approximately twenty-two pounds of methamphetamine.

On this evidence the trial judge denied Barrientos's motion to suppress. Pursuant to an agreement that the evidence taken during the suppression hearing would also serve as evidence for a bench trial, the State's case on the merits was later concluded with the introduction of evidence relating to the state crime laboratory's analysis of the contraband that had been discovered in Barrientos's car. Barrientos rested without calling witnesses. Thereafter, the court announced his finding that Barrientos was guilty.

Barrientos's first argument on appeal is that Officer Taylor did not have probable cause to stop his car, and that the judge erred in refusing to suppress the evidence that, because of the unconstitutional stop, was fruit of the poisonous tree. When reviewing a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999); Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998). In making this determination, we view the evidence in the light most favorable to the appellee. Fouse, supra; Langford, supra.

A police officer may conduct a traffic stop and detain a motorist only where the officer has probable cause to believe that a traffic violation has occurred. The relevant inquiry is whether the officer had probable cause to believe that a traffic violation was being committed or had occurred. Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998); Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997); Kimery v. State, 63 Ark. App. 52, 973 S.W.2d 836 (1998). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Johnson v. State, 299 Ark. 223, 772 S.W.2d 322 (1989). In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997). All that is required is that the officer had probable cause to believe that a traffic violation had occurred; whether the defendant is actually guilty of the traffic violation is for a jury or a court to decide, and not an officer on the scene. Burris, supra; State v. Jones, 310 Ark. 585, 839 S.W.2d 184 (1992).

In United States v. Miller, 146 F.3d 274 (5th Cir. 1998), a deputy sheriff began to follow Miller's motor home near Amarillo, Texas, because it had no front license plate. From behind he could tell it had a temporary Colorado license plate. The deputy stopped Miller because, as he followed the motor home, he noticed that the left turn signal was on and that the motor home proceeded through an intersection, but neither turned left nor changed lanes. The Texas traffic code contained no provision prohibiting the driver of a motor vehicle that was displaying a turn signal from proceeding through an intersection without turning or changing lanes. Thus, the court found that there was no objective...

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