Brunson v. State

• Decision Date: 17 March 1997
• Docket Number: No. CR,CR
• Citation: 940 S.W.2d 440,327 Ark. 567
• Parties: Alton Levern BRUNSON, Appellant, v. STATE of Arkansas, Appellee. 96-826.
• Court: Arkansas Supreme Court

Page 440

940 S.W.2d 440

327 Ark. 567

Alton Levern BRUNSON, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-826.

Supreme Court of Arkansas.

March 17, 1997.

Supplemental Opinion on Denial of

Rehearing May 5, 1996.

William R. Simpson, Public Defender, Kent C. Krause, Deputy Public Defender, Little Rock, for appellant.

Winston Bryant, Attorney General, J. Brent Standridge, Assistant Attorney General, Little Rock, for appellee.

CORBIN, Justice.

We granted the State's petition to review the decision of the court of appeals in this case where the sole issue is whether the odor of marijuana or the smell of marijuana smoke emanating from a legally stopped vehicle constitutes probable cause to search the occupants. The trial court ruled that probable cause existed, convicted Appellant Alton Levern Brunson of one count of possession of a controlled substance, fined him $250, imposed court costs, and sentenced him to five years' probation. The court of appeals reversed, holding there was no probable cause to conduct the warrantless search of Appellant's person. Brunson v. State, 54 Ark.App. 248, 925 S.W.2d 434 (1996). After granting a petition for review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997); Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996). Upon our review, we conclude the trial court did not err in denying Appellant's motion to suppress and therefore affirm the judgment of conviction.

Appellant was charged by information with one count of felony possession of cocaine and one count of misdemeanor possession of marijuana. He moved to suppress the evidence obtained from the search of his person on the bases that he was searched without a warrant, without benefit of reasonable suspicion that he was armed and dangerous, and without probable cause to believe that he had committed a felony. After a bench trial, the trial court denied the motion to suppress. Upon his conviction, the misdemeanor was merged with the felony.

In reviewing the denial of a motion to suppress evidence, we make an independent examination based upon the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Mullinax, 327 Ark. 41, 938 S.W.2d 801; Crail v. State, 309 Ark. 120, 827 S.W.2d 157 (1992). We view the facts in the light most favorable to the State. Id.

Appellant does not dispute that the vehicle in which he was a passenger was legally stopped for violation of a raucous noise ordinance in North Little Rock, Arkansas, on March 19, 1994, at approximately 1:30 in the morning. Detective John Breckon, of the North Little Rock Police Department, testified that as he approached the driver's side of the vehicle, he smelled an odor of marijuana coming from the vehicle; on cross-examination, he stated he smelled marijuana smoke. He stated that he had all four occupants step out of the vehicle and that, because of the smell, all four occupants were searched. Detective Breckon testified that he performed a pat-down search of Appellant, who was in the rear passenger seat of the vehicle, and found a small quantity of marijuana and a package of cigarette rolling papers in his left front pants pocket. After arresting Appellant, Detective Breckon stated that he continued searching Appellant and found two rocks of cocaine in the cargo pocket of his left leg.

Appellant's sole point of error on appeal is the legality of the search of his person. He does not challenge the stop itself or the qualifications of the officer to identify the odor of marijuana or its smoke. Rather, he contends that the smell of marijuana or its smoke emanating from the vehicle alone did not justify the search of his person. We simply do not agree and find Appellant's argument to be wholly without merit.

The same standards govern reasonable cause or probable cause determinations, regardless of whether the question is the validity of an arrest or the validity of a search and seizure. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). The determination of probable cause is to be based on the factual and practical considerations of everyday life upon which reasonable and prudent persons act. Id. In assessing the existence of probable cause, our review is liberal rather than strict. Id.

With reasonable cause to believe that an offense has been or is being committed in the officer's presence, an officer may make an arrest without a warrant pursuant to A.R.Cr.P. Rule 4.1(a)(iii). There is no doubt that, after having stopped the vehicle at 1:30 a.m. for playing music so loudly it violated a city ordinance, upon smelling the marijuana or its smoke emanating from the vehicle, Detective Breckon had probable cause to believe that an offense had been or was being committed in his presence. Quite simply, the smell of the marijuana or its smoke emanating from a vehicle constitutes facts and circumstances sufficient to warrant a person of reasonable caution to believe that a controlled substance has been or is being possessed or delivered or both, and, thus, that a violation of law has occurred or is occurring.

Courts in this state have held that the smell of marijuana or its smoke emanating from a vehicle gives rise to reasonable suspicion to detain the occupants to determine the lawfulness of their conduct, Phillips v. State, 53 Ark.App. 36, 918 S.W.2d 721 (1996), to search the vehicle, Lopez v. State, 29 Ark.App. 145, 778 S.W.2d 641 (1989) (citing Gordon v. State, 259 Ark. 134, 529 S.W.2d 330 (1976), cert. denied, 434 U.S. 929, 98 S.Ct. 414, 54 L.Ed.2d 289 (1977)), and to arrest some or all of its occupants, depending upon the particular circumstances, Crail, 309 Ark. 120, 827 S.W.2d 157.

In the present case, the smell of the marijuana or its smoke emanating from the vehicle gave Detective Breckon reasonable cause to believe an offense had been or was currently being committed inside the enclosed space of the vehicle. He thus had probable cause to arrest the occupants of the vehicle consistent with Rule 4.1(a)(iii). We are not persuaded by Appellant's argument that an individualized suspicion or cause is required to arrest each occupant under the facts and circumstances presented in this case. Such an argument would lead to the illogical conclusion that none of the four occupants could have been arrested even though the smell of marijuana or its smoke was emanating from the enclosed space of the vehicle where all four occupants were present.

Once an officer has made a lawful arrest, he may, without a warrant, search the person to obtain evidence of the commission of the offense or to seize contraband pursuant to A.R.Cr.P. Rule 12.1(d). A search is valid as incident to a lawful arrest even if it is conducted before the arrest, provided that the arrest and search are substantially contemporaneous and that there was probable cause to arrest prior to the search. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Horton v. State, 262 Ark. 211, 555 S.W.2d 226 (1977). Here, the smell of marijuana or its smoke emanating from the vehicle constituted probable cause to arrest the occupants, and, according to Detective Breckon's testimony, the smell existed prior to the search. The search and the arrest were substantially contemporaneous as Detective Breckon testified he conducted a pat-down search of Appellant, found the marijuana, arrested Appellant, and then continued to search him following the arrest.

Under the totality of the circumstances, we conclude the warrantless search of Appellant's person was reasonable. Accordingly, we cannot conclude the trial court erred in denying Appellant's motion to suppress. In making this conclusion, we have balanced the public interest of officer safety against Appellant's right to personal security free from arbitrary interference by law officers. Maryland v. Wilson, --- U.S. ----, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997).

Initially, we are concerned with the circumstances. This case involves a moveable vehicle. It was early in the morning when the vehicle was stopped, 1:30 a.m. The four occupants were riding and listening to music played so loudly that it was in violation of a city ordinance. When the vehicle was stopped, the officer smelled marijuana or its smoke emanating from the confined and enclosed space of the vehicle. The odor constituted probable cause to believe an offense was committed or being committed under the Controlled Substances Act. The pat-down search was incident to the arrest.

On the private-interest side, we note that the search was a pat-down search conducted contemporaneously with an arrest based on probable cause. Accordingly, this was not an arbitrary interference with Appellant's personal security interest.

On the public-interest side is officer safety. There were four occupants in this vehicle. Because the danger to an officer during a traffic stop is likely to be greater when there are passengers in addition to the driver of the stopped car, an officer making a traffic stop may order passengers to get out of the car pending the completion of the stop. Wilson, --- U.S. ----, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). On these facts, there was no need for further detention to complete the stop because the smell of marijuana or its smoke emanating from the vehicle constituted probable cause to arrest the occupants. See Wilson, --- U.S. at ----, n .3, 117 S.Ct. at 886, n. 3. As cited by the Court in Wilson, eleven officers were killed and 5,762 were assaulted during traffic stops in 1994 according to an FBI report; the risk of harm to an officer increases when there is more than one occupant of the vehicle. Wilson, --- U.S. at ----, 117 S.Ct. at 885. Contrary to Appellant's assertions, Officer Breckon did not testify that he was not concerned about weapons or his safety. No evidence to that...